1

A - Mode of Taking and Recording Evidence 272. Language of Courts :- The State Government may determine what shall be, for purposes of this Code, the language of each Court within the State other than the High Court. Language of Courts.The Constitution provides that until Parliament by law otherwise provides, all proceedings in the Supreme Court and in every High Court shall be in English language. However, the Governor of a State may, with the previous sanction of the President, authorise the use of the Hindi language, or any other language used for any official purposes of the State, in proceedings in the High Court having its principal seat in that State; but this rule shall not apply to any judgment, decree or order passed or made by such High Court. The State Government may determine what shall be, for purpose of this Code, the language of each court within the State other than the High Court [S. 272. This does not however mean that a witness cannot give his evidence in a language other than the court language; nor does it mean that the accused person cannot give his statement in a language different from the court language. In such cases where the language used by witness or the accused person is one other than the court language, procedures have been provided by Ss. 277 and 281 for the recording of such evidence and statement.

273. Evidence to be taken in presence of accused:- Except as otherwise expressly provided, all evidence taken in the course of the trial or other proceeding shall be taken in the presence of the accused, or, when his personal attendance is dispensed with, in presence of his pleader. This section makes it obligatory that evidence for the prosecution and defence should be taken in the presence of the accused. A trial is vitiated by failure to examine the witnesses in the presence of the accused. Mere cross examination in the presence of the accused is not sufficient. Supreme Court in Talab Haji Hussain , if a fair trial is the main object of the criminal procedure, any threat to the continuance of a fair trial must be immediately arrested. If an accused person by his own conduct, puts the fair trial into jeopardy, it would be the primary and paramount duty of criminal Courts to ensure that the risk to the fair trial is removed and criminal Courts are allowed to proceed with the trial smoothly and without any interruption or obstruction. The rule enacted in this section makes it imperative that all evidence in an inquiry and trial shall be taken in the presence of the accused. That being so it is not sufficient under the section to read out to a witness his previous deposition in a former case and ask him if the statements made therein are true nor is it permissible to consider at all the evidence given in one case for the purpose of reaching conclusions in the other case. The two cases should be tried independently and determined on evidence recorded in each case. If this is not done the vitated and s. 465

cannot cure it. Even consent by accused or his counsel cannot validate such proceedings. Each case must be decided on the evidence recorded in it; evidence recorded in another case cannot be taken into account in arriving at the decision. 1. Personal attendance is dispensed with.Sessions Judge has power to dispense with the personal attendance of an accused and to allow him to appear by pleader during the Sessions trial. Such a power may properly be favour of pardanashin ladies, or on ground of ill-health. State of Maharashtra v. Dr. Praful B. Desai, 2003 Cr 2033 (SC) :- Since the taken presence in Section 273 of Cr PC does not mean actual physical presence of accused in Court hence evidence can be recorded in presence of pleader. Recording of evidence by video conferencing. The S.C. held that recording of evidence by confrencing is permissible . The Evidence so recorded would fully meet the requirement of sec. 273. Recording of evidence by video conferencing in presence of accused or his pleader would be as per procedure establish by law. 274. Record in summons-cases and inquiries:-(1) In all summons-cases tried before a Magistrate, in all inquiries under Sections 145 to 148 (both inclusive), and in all proceedings under Section 446 otherwise than in the course of a trial, the Magistrate shall, as the examination of each witness proceeds, make a memorandum of the substance of his evidence in the language of the Court: Provided that if the Magistrate is unable to make such memorandum himself, he shall, after recording the reason of his inability, cause such memorandum to be made in writing or from his dictation in open Court. (2) Such memorandum shall be signed by the Magistrate and shall form part of the record. COMMENT. This section enjoins upon a Magistrate to make a substance evidence of a witness (1) in all summons-cases, (2) in all enquiries under ss. 145 to 148 both inclusive (disputes regarding immovable properties) and (3) in all proceeding under s. 446 regarding forfeiture of a bond. Such substance of evidence shall be taken down in the language of the Court. If the Magistrate is unable to make such memorandum himself, he can cause such memorandum to be made in writing or from his dictation in open Court. Such memorandum must be signed by the Magistrate and shall form part of the record.

275. Record in warrant-cases:-(1) In all warrant-cases tried before a Magistrate, the evidence of each witness shall, as his examination proceeds, be taken down in writing either by the Magistrate himself or by his dictation in open Court or, where he is unable to do so owing to a physical or other incapacity, under his direction and superintendence, by an officer of the Court appointed by him in this behalf. (2) Where the Magistrate causes the evidence to he taken down, he shall record a certificate that the evidence could not be taken down by himself for the reasons referred to in sub-section (1). (3) Such evidence shall ordinarily be taken down in the form of a narrative; but the Magistrate may, in his discretion take down or cause to be taken down, any part of such evidence in the form of question and answer. (4) The evidence so taken down shall be signed by the Magistrate and shall form part of the record. COMMENT. This section lays down the manner in which evidence is to be recorded in warrant-cases tried before a Magistrate. If the evidence is not taken down by the Magistrate or by his dictation in Court, it casts a duty on the Magistrate to state reason as to why it was taken down by an officer of the Court and he himself did not record the evidence. The evidence should be in the form of a narrative but discretion is given to the Magistrate to record the evidence in the form of questions and answers. Evidence of each witness shall be taken down to writing.In each deposition should appear the name of the person examined, the name of his or her father and if a married woman, the name of her husband, the religion, caste,profession and age of the party or witness, and the village in which he or she resides. The proper way of recording evidence is to take it down in the first person exactly as spoken by the witness. The Judge is not bound to make a verbatim record of any particular question and answer. If either side request him to do so, the Judge may in his discretion act accordingly. The word witness includes complainant. 276. Record in trial before Court of Session:-(1) In all trials before a Court of Session, the evidence of each witness shall, as his examination proceeds, be taken down in writing either by the presiding Judge himself or by his dictation in open Court, or under his direction and superintendence, by an officer of the Court appointed by him in this behalf. (2) Such evidence shall ordinarily be taken down in the form of a narrative, but the presiding Judge may, in his discretion, take down, or cause to be taken down, any part of such evidence in the form of question and answer. (3) The evidence so taken down shall be signed by the presiding Judge and shall form part of the record.

COMMENT. Recording of evidence trials before the Session case should be in the form of question and answer; the Judge, however,has discretion to take down or cause it to be taken down in the form of a narrative. Where the Sessions Judge convicted a person and awarded punishment without hearing him on the quantum of sentence violating s. 276 (2), Cr. P.C. as amended sentence was set aside. 277. Language of record of evidence:- In every case where evidence is taken down under Sections 275 and 276:(a) if the witness gives evidence in the language of the Court, it shall be taken down in that language; (b) if he gives evidence in any other language, it may, if practicable, be taken down in that language, and if it is not practicable to do so, a true translation of the evidence in the language of the Court shall be prepared as the examination of the witness proceeds, signed by the Magistrate or presiding Judge, and shall form part of the record; (c) where under Clause (b) evidence is taken down in a language other than the language of the Court, a true transaction thereof in the language of the Court shall be prepared as soon as practicable, signed by the Magistrate or presiding Judge, and shall form part of the record: Provided that when under clause (b) evidence is taken down in English and a translation thereof in the language of the Court is not required by any of the parties, the Court may dispense with such translation. COMMENT. A witness may give evidence either in the the language of the court or any other language. The section provides for different contingencies which may arise in the event of the witness giving evidence in the language of the court or any other language. The proper and convenient way for recording evidence is to take it down in the first person exactly as spoken by the witness. 278. Procedure in regard to such evidence when completed.--(1) As the evidence of each witness taken under Section 275 or Section 276 is completed, it shall be read over to him in the presence of the accused, if in attendance, or of his pleader, if he appears by pleader, and shall, if necessary, be corrected. (2) If the witness denies the correctness of any part of the evidence when the same is read over to him, the Magistrate or presiding Judge may, instead of correcting the evidence, make a memorandum thereon of the objection made to it by the witness, and shall add such remarks as he thinks necessary. (3) If the record of the evidence is in a language different from that in which it has been given

and the witness does not understand that language, the record shall be interpreted to him in the language in which it was given, or in a language which he understands. COMMENT. This section requires that the evidence of witness when completed should be read over to him in the presence of the accused or his pleader. The evidence should be read after it is completed and not at the end of the day after all the witnesses have been examined. When the correction slips were filed much after the evidence of the witness was recorded and the slips were unsigend the refusal by the trial judge to effect the changes was held to be correct .The reading of the deposition to a witness himself is not sufficient. The object of reading over a deposition to a witness is to obtain an accurate record from the witness of what he really means to say, and to give him an opportunity 279. Interpretation of evidence to accused or his pleader :-(1) Whenever any evidence is given in a language not understood by the accused, and he is present in Court in person, it shall be interpreted to him in open Court in a language understood by him. (2) If he appears by pleader and the evidence is given in a language other than the language of the Court, and not understood by the pleader, it shall be interpreted to such pleader in that language. (3) When documents are put for the purpose of formal proof, it shall be in the discretion of the Court to interpret as much thereof as appears necessary. COMMENT. Signs and gestures do not form a language, though loosely they may becalled the language of the deaf and dumb. But that is not mean by this section. The Supreme Court has held that where the appellant was represented by two eminent advocates who knew both English and Tamil, it could not said that any prejudice has been caused to the appellant because he did not know English or Tamil and the violation of sub-section (1) of this section was merely an irregularity. 280. Remarks respecting demeanour of witness:-When a presiding Judge or Magistrate has recorded the evidence of a witness, he shall also record such remarks (if any) as he thinks material respecting the demeanour of such witness whilst under examination. ComeENT.- The object of this section is to give to the appellate Court some aid in estimating the value of the evidence recorded by another Court. A Judeg may note the demeanour of a witness whilst under examination, but it is generlly unsafe to pronounce an opinion on the credibility of the witness until the whole of his evidence has been taken. The demeanour of the witness under other circumstances ought not to be taken notice of by the Judge. The demeanour of a witness which goes to affect the Court in appreciating his evidence must be noted down at the proper stage during or at the close of the examination of the witness. To note

about the demeanour of a witness in the course of the judgment, though not illegal, is not fair and any such note about the demeanour should be known to the counsel of the parties, who may have suggestion to make about the observations and inferences to be drawn therefrom. It has been held by the Supreme court that the remarks representing the demeanour of the witness under s. 280 made in the judgment, though not made either during or at the close of the examination of the witness by a trial Judge, should be given due weight by the Appellate Court in the appraisal of the evidence given by such witness. But where the trial Judge had not indicated any person which impelled him to make remarks in the judment, the High Court was helf right in not paying much attention to the remarks.

281. Record of examination of accused :--(1) Whenever the accused is examined by a Metropolitan Magistrate, the Magistrate shall make a memorandum of the substance of the examination of the accused in the language of the Court and such memorandum shall be signed by the Magistrate and shall form part of the record. (2) Whenever the accused is examined by any Magistrate other than a Metropolitan Magistrate, or by a Court of Session, the whole of such examination, including every question put to him and every answer given by him, shall be recorded in full by the presiding Judge or Magistrate himself or where he is unable to do so owing to a physical or other incapacity, under his direction and superintendence by an officer of the Court appointed by him in this behalf. (3) The record shall, if practicable, be in the language in which the accused is examined, or if that is not practicable, in the language of the Court. (4) The record shall be shown or read to the accused, or, if he does not understand the language in which it is written, shall be interpreted to him in a language which he understands, and he shall be at liberty to explain or add to his answers. (5) It shall thereafter be signed by the accused and by the Magistrate or presiding Judge, who shall certify under his own hand that the examination was taken in his presence and hearing and that the record contains a full and true account of the statement made by the accused. (6) Nothing in this section shall be deemed to apply to the examination of an accused person in the course of a summary trial. COMMENT.This section deals with the mode of recording examination of the accused by a Metropolitan Magistrate and any Magistrate otherthan a metropolitan Magistrate or by Court of Session. Whereas the MM is required to make a memorandum of the substance of the examination of the accused any other Magistrate or the Presiding Judge of the Session court is required to record in full the whole of such examination including every question put to him and the answer given by him.

The examination of an accused under this section is subject to the purpose inferred to in s. 313, viz., to enable him to explain any circumstance appearing against him and not tob supp1ement the case for the prosecution against him to show that he is guilty. An accused person cannot properly be examined at the commencement of an inquiry or trial, and before any evidence has been taken, for there is nothing before the Court which he can be called upon to explain. Magistrate to make memorandum of substance of examination sub- section (1)1.This subsection does not apply in a case where the accused pleads guilty. In such a case the provisions of s. 252 being special provision would be applicable and would Override the provisions of this sub-section. The practice of prosecution not to inform the Metropolitan Magistarte about previous convictions of an accused person before his trial is salutory as it is founded on the desire of the prosecuting authorities to see that the accused has fair play. But they may indicate to the Magistrate in a case in which he is not bound to take evidence but where the accused has previous conviction that they think that the case is one in which it is desirable that the evidence should be recorded. An intimation of that sort cannot prejudice the trained mind of magistrate and the difficulty of finding, after he has tried the case, that he ought to have recorded evidence can he saved. Where the Magistrate has tried a case without recording the evidence and he finds that a longer sentence than six months ought to be passed, he should record the evidence afresh. 1. Every question put to him and every answer given by him, shall be recorded in full. This is of great importance, for a statement made in answer to a question put may have a different meaning if considered without such question. When questions have in fact been put, the failure to record them by the Magistrate is curable under 5. 463, provided that the error has not prejudice the accused in his defence on the merits. But if the questions were not put at all sec. 463 does not apply. Section 463 removes defect of form, but not a defect of such stance. 2. In the language in which the accused is examined or, if that is not practicable, in the language of the Court.Ordinarily, the statement should be recorded in the language in which the accused was examined. The object in view is to obtain the words used by the accused, and by this means to learn the meaning of what he may have said. If it is not practicable to record the examination in the language in which it is made, it may be recorded in the language of the Court.Where the statement is made in a foreign language unknown to the Court, the language in which that statement is conveyed to the Court by the interpreter is the language in which the statement should be recorded. 3. Signed by the accused.Where an accused person cannot sign his name his mark is sufficient for the requirements of this section. The record of confession must bear the signature of the accused, otherwise it is not admissible in evidence.

282. Interpreter to be bound to interpret truthfully:- When the services of an interpreter are required by any Criminal Court for the interpretation of any evidence or statement, he shall be bound to state the true interpretation of such evidence or statement. 283. Record in High Court:- Every High Court may, by general rule, prescribe the manner in which the evidence of witnesses and the examination of the accused shall be taken down in cases coming before it, and such evidence and examination shall be taken down in accordance with such rule. Part B. Part (A) deals with provisions contained in Ss. 284-290 relating to commissions for the examination of witnesses; and p (B) discusses the provisions of Ss.291-299 dealing with certain special rules of evidence to facilitate proof and to reduce the time and expenditure involved in the production of certain kinds of evidence. Sections 284-290 give the procedure for issuing commissions for the examination of witnesses and for the execution of such commissions. These provisions are applicable in respect of witnesses in the territories to which the Code extends. They also apply in case of witnesses in areas in India but outside those territories, and of witnesses outside India. It may, however, be noted that these provisions have to be sparingly used; because, as has been held in several cases, examination on commission is an exception rather than the rule. The fundamental basic principle of judicial procedure is that the evidence of one party should not be received against another party without the latter having an opportunity of testing its truthfulness by cross- examination. The provisions of Ss. 291-299 have, for varied reasons, created some exceptions to this fundamental basic principle. The exceptions are, however, subject to certain safeguards. A. COMMISSIONS FOR THE EXAMINATION OF WITNESSES Dispensing with the attendance of witness by issuing commission for his examination. Whenever, in the course of any inquiry, trial or other proceeding under the Code, it appears to a court or magistrate that the examination of a witness is necessary for the ends of justice, and that the attendance of such a witness cannot be procured without an amount of delay, expense or inconvenience which, under the circumstances of the case, would be unreasonable, the court or magistrate may dispense with such attendance and may issue a commission for the examination of the witness in accordance with the provisions of this chapter. [S. 284(1)]. As a general rule every witness ought to be present in court where the case is tried because of the various advantages that are derived by such presence not only to the court but also to the accused. Therefore, though the court has got discretion in issuing a commission for the examination of witnesses, that discretion should be used sparingly and only in the clearest possible case. As a general rule it may be said that the important witnesses on whose testimony

the case against the accused person has to be established must be examined in court and usually the issuing the issuing of commission should be restricted to formal witnesses or such witnesses who could not be produced without an amount of delay or inconvenience unreasonable in the circumstances of the case. The discretion to be used by the court or magistrate in issuing a commission is a judicial one and should not be lightly or arbitrarily exercised. If the evidence against the accused is recorded in his presence and in open court, he gets an opportunity to challenge the testimony against him by cross-examination, and the court is enabled to see the witnesses and observe their demeanour. This aspect is to be borne in mind while exercising the discretion to issue commissions for the examination of witnesses. The court may, when issuing a commission for the examination of a witness for the prosecution, direct that such amount as the court considers reasonable to meet the expenses of the accused, including the pleaders fees, be paid by the prosecution. [5. 284(2)]. The above S. 284(2) gives a discretion to the court, and it may well be assumed that similar discretion is there to a magistrate issuing a commission for the examination of witnesses though the word magistrate has not been used in the section. The court or magistrate has been given discretion to require payment by the prosecution of such expenses as the court or magistrate considers reasonable to enable the accused and his counsel to participate in the examination on commission. It may be noted that such payment is however confined to cases where a commission is issued for the examination of a prosecution witness. The question whether a complainant can be examined on commission has been answered in the negative. In a case, the complainants request to be examined on commission due to his old age and ill-health was rejected by the court asserting that he would not be covered under S. 284 of the Code. According to the court, the complainants privilege as a witness has to surrender to his duties as a complainant and to the rights of the accused. Commission to whom to be issued.( 1) If the witness is within the territories to which this Code extends, the commission shall be directed to the Chief Metropolitan Magistrate or Chief Judicial Magistrate, as the case may be, within whose local jurisdiction the witness is to be found. [S. 285(1)] (2) If the witness is in India, but in a State or an area to which this Code does not extend, the commission shall be directed to such court or officer as the Central Government may, by notification, specify in this behalf. [S. 285(2) (3) If the witness is in a country or place outside India and arrangements have been made by the Central Government with the Government of such country or place for taking the evidence of witnesses in relation to criminal matters, the commission shall be issued in such form, directed to such court or officer, and sent to such authority for transmission, as the Central Government may, by notification, prescribe in this behalf. [S. 285(3)].

10

The provisions contained in Ss. 285 and 290 of the Code contain complementary provisions for reciprocal arrangements between the Government of our country and the Government of a foreign country for commission from courts in India to specified courts in the foreign country for examination of witnesses in the foreign country and similarly for commissions from specified courts in the foreign country for examination of witnesses residing in our country. When it appears that reciprocal arrangements within the meaning of Ss. 285 and 290 are not made, courts would not make orders in vain for the issue of commission under S. 285(3). Execution of commissions.Upon receipt of the commission, the Chief Metropolitan Magistrate or Chief Judicial Magistrate, or such Metropolitan or Judicial Magistrate as he may appoint in this behalf, shall summon the witness before him or proceed to the place where the witness is, and shall take down his evidence in the same manner, and may for this purpose exercise the same powers, as in trials of warrant-cases under this Code. [S. 286 The parties to any proceeding under this Code in which a commission is issued may respectively forward any interrogatories in writing which the court or magistrate directing the commission may think relevant to the issue, and it shall be lawful for the magistrate, court or officer to whom the commission is directed, or to whom the duty of executing it is delegated, to examine the witness upon such interrogatories. [S. 287(1)] Generally speaking, witnesses in a criminal case should not be examined on commission except in extreme cases of delay, expense or inconvenience and in particular the procedure by way of interrogatories should be resorted to in unavoidable situations. Any such party as is referred to above may appear before such magistrate, court or officer by pleader, or if not in custody, in person, and may examine, cross-examine and re-examine (as the case may be) the said witness. [S. 287(2)] Return of Commission.After any commission issued under S. 284 has been duly executed, it shall be returned, together with the deposition of the witness examined there under, to the court or magistrate issuing the commission; and the commission, the return thereto and the deposition shall be open at all reasonable times to inspection of the parties, and may subject to all just exceptions, be read in evidence in the case by either party, and shall form part of the record [S. 288(1)] Any deposition so taken, if it satisfies the conditions prescribed by S. 33 of the Indian Evidence Act, 1872, may also be received in evidence at any subsequent stage of the case before another court. [S. 288(2)] Section 33 of the Evidence Act provides as follows: Evidence given by a witness in a judicial proceeding, or before any person authorized by law to take it, is relevant for the purpose of proving, in a subsequent judicial proceeding, or in a later stage of the same judicial proceeding, the truth of the facts which it states, when the witness is

11

dead or cannot be found, or is incapable of giving evidence, or is kept out of the way by the adverse party, or if his presence cannot be obtained without an amount of delay or expense which, under the circumstances of the case, the court considers unreasonable: Provided that the proceeding was between the same parties or their representatives in interest; that the adverse party in the first proceeding had the right and opportunity to cross-examine; that the questions in issue were substantially the same in the first as in the second proceeding. Explanation.A criminal trial or inquiry shall be deemed to be a proceeding between the prosecutor and the accused within the meaning of this section. Execution of foreign commissions.Section 290 provides as follows: 290. Execution of foreign commissions.(1) The provisions of S. 286 and so much of S. 287 and S. 288 as relate to the execution of a commission and its return shall apply in respect of commissions issued by any of the Courts, Judges or Magistrates hereinafter mentioned as they apply to commission issued under S. 284. (2) The Courts, Judges and Magistrates referred to in sub-section (1) are (a) any such Court, Judge or Magistrate exercising jurisdiction within an area in India to which this Code does not extend, as the Central Government may, by notification, specify in this behalf; (b) any Court, Judge or Magistrate exercising jurisdiction in any such country or place outside India, as the Central Government may, by notification, specif in this behalf, and having authority, under the law in force in that country or place, to issue commissions for the examination of witnesses in relation to criminal matters. Adjournment of proceeding.In every case in which a commission is issued under S. 284, the inquiry, trial or other proceeding may be adjourned for a specified time reasonably sufficient for the execution and return of the commission. [S. 289] B. SPECIAL CIRCUMSTANCES PERMITTING UNASSAYED EVIDENCE There are two methods of testing evidence and ensuring that truth comes out in evidence. The first is by administration of oath and the other is cross-examination. These are the two most important safeguards against false testimony and unless evidence is given on oath and is tested by cross- examination, it is not legally admissible against the party affected. However, these safeguards have been, to an extent, dispensed with in the circumstances mentioned in Ss. 290291. The following paragraphs will deal with these matters. Deposition of medical witness.The deposition of a civil surgeon or other medical witness, taken and attested by a magistrate in the presence of the accused, or taken on commission under this chapter, may be given in evidence in any inquiry, trial or other proceeding under this Code, although the deponent is not called as a witness. [S. 29 1(1)]

12

The court may, if it thinks fit, and shall, on the application of the prosecution or the accused, summon and examine any such deponent as to the subject-matter of his deposition. [S. 291(2) The deposition of a medical witness, taken and signed in the presence of the accused and attested by a magistrate, can be given as evidence in any inquiry or trial even without calling him as a witness. It may, however, be noted that the section confines itself to expert evidence given by a medical witness as such. The section does not apply to the evidence relating to facts tendered by a person who also happens to be a medical man. No formal proof of certain documents.Where the genuineness of any document is not disputed by the parties, such document should be allowed to be read in evidence without the formal proof of the signature of the person to whom it purports to be signed. This has been provided by S. 294 which reads as follows: 294. No formai proof of certain documents.(1) Where any document is filed before any Court by the prosecution or the accused, the particulars of every such document shall be included in a list and the prosecution or the accused, as the case may be, or the pleader for the prosecution or the accused, if any, shall be called upon to admit or deny the genuineness of each such document., (2) The list of documents shall be in such form as may be prescribed by the State Government. (3) Where the genuineness of any document is not disputed, such document may be read in evidence in any inquiry, trial or other proceeding under this Code without proof of the signature of the person to whom it purports to be signed: Provided that the Court may, in its discretion, require such signature to be proved. The section is useful for curtailing avoidable delay and expenditure in the conduct of the criminal proceedings. The word any appearing before the word document in S. 294(1) theans an indefinite number and makes that provision applicable to all documents filed by the prosecution or the accused irrespective of their nature and character. u For attracting S. 294 it is irrelevant whether the documents admitted to be genuine are primary or secondary or substantive or corroborative. If the prosecution or the accused does not dispute the genuineness of document filed by the opposite party under S. 294(1), it amounts to an admission that the entire document is true and correct. It means that the document has been signed by the person by whom it purports to be signed. It also implies the admission as to the correctness of the contents of the document. Such a document may be read in evidence under S. 294(3). The phrase read in evidence means as substantive evidence, which is the evidence adduced to prove a fact in issue as opposed to the evidence used to discredit a witness or to corroborate his testimony. Therefore an injury report filed by the prosecution under S. 294(1) whose genuineness is not disputed by the accused may be read as substantive evidence under S. 294(3).

13

Affidavits in proof of certain matters.To speed up the trial out affecting its fairness, it has been provided that evidence of a formal acter may be adduced by filing an affidavit of the witness. The relevant isions in this connection are as follows: (a) Affidavit in proof of conduct of public servants.According to 95, when any application is made to any court in the course of any Liry, trial or other proceeding under this Code, and allegations are made em respecting any public servants, the applicant may give evidence of facts alleged in the application by affidavit, and the court may, if it ks fit, order that evidence relating to such facts be so given. [S. 295 (b) Evidence of formal character on affidavit.The evidence of any ;on whose evidence is of a formal character may be given by affidavit may, subject to all just exceptions, be read in evidence in any inquiry, 1 or other proceeding under this Code. [S. 296(1) The court may, if it thinks fit, and shall, on the application of the secution or the accused, summon and examine any such person as to facts contained in the affidavit. [S. 296(2)] Besides the two categories of evidence as mentioned in Ss. 295 and no other evidence can be adduced by affidavit. (c) Affidavits how made.Section 297 provides as follows: 297. Authorities before whom affidavits may be sworn.( 1) Affidavits to be used before any Court under this Code may be sworn or affirmed before (a) anyjudge or any judicial or Executive Magistrate, or (b) any Commissioner of Oaths appointed by a High Court or Court of Session, or (c) any notary appointed under the Notaries Act, 1952 (53 of 1952). (2) Affidavits shall be confined to, and shall state separately, such facts as the deponent is able to prove from his own knowledge and such facts as he has reasonable ground to believe to be true, and in the latter case, the deponent shall clearly state the grounds of such belief. (3) The Court may order any scandalous and irrelevant matter in the affidavit to be struck out or amended. An affidavit is a written declaration or statement of facts, made voluntarily, and confirmed by oath or affirmation of the party making it, taken before an officer haying authority to administer such oath. Section 297(1) mentions the authorities before whom the affidavit may be sworn or affirmed. Section 297(2) states the matters to which the affidavits are to be confined and the mode in which they are to be sciom or affirmed. In a case where it is not stated in the affidavit as to which portion is sworn on personal knowledge or on the information received from record or from any other source, and where the person before whom the affidavit has been presented and who has verified it has not certified the fact of swearing of affidavit before him and the hour of swearing

14

nor has it been certified that the affidavit was read out and explained to the deponent and that he understood the contents thereof, the affidavit cannot be construed to be an affidavit in the eye of law and it would be an error to rely on such an affidavit. The affidavits that are required to be filed in the court under the Code have to be governed by the provisions of S. 297 thereof.