Procedure for Procuring Evidence in Criminal Cases

PROCEDURE FOR PROCURING EVIDENCE IN CRIMINAL CASES PROCEDURE FOR PROCURING EVIDENCE IN CRIMINAL CASES By Muhammad Masood Asghar, Civil Judge, Gujrat It is observed as a common practice in magisterial courts that after framing of charge and recording a 'not guilty' plea, prosecution witnesses are summoned by the court on its own motion, in a mechanical manner and without there being an application filed in this regard as required by law. Such a practice is not in conformity with the scheme of law and it not only violates the legislative intent but also breaches valuable right of accused to have a fair and impartial trial. Often it is found that a witness who is summoned by the court on its own, turns hostile to the case of prosecution, which actually is the result of 'suo motu' summoning of witnesses of prosecution. If prosecutor is put to his choice as per the mandate of section 244(2), Cr.P.C., such an undesirable situation may well be avoided. As per the procedure for trials before Magistrate Court, set out in the Code of Criminal Procedure 1898, Magistrate Court after framing of the charge, if accused does not plead guilty or is not convicted on his confession, is required only to hear the complainant and take all the evidence as may be produced by the prosecution in support of its case. Relevant provision of law in this regard is section 244 of Code of Criminal Procedure 1898 which states as follows: 244. Procedure when no such admission is made.--(1) "If the Magistrate does not convict the accused under the preceding section or if the accused does not make such admission, the magistrate shall proceed to hear the complainant (if any), and take all evidence as may be produced in support of the prosecution, and also to hear the accused and take all such evidence as he produces in his defence: Provided that the Magistrate shall not be bound to hear any person as complainant in any case in which the complaint has been made by a court. (2) The Magistrate may, if he thinks fit, on the application of the complainant or accused, issue a summons to any witness directing him to attend or to produce any document or other thing. (3) The Magistrate may, before summoning any witness on such application, require that his reasonable expenses, incurred in attending for the purposes of the trial, be deposited in court: Provided that it shall not be necessary for the accused to deposit any such expenses in court in cases where he is charged with an offence punishable with imprisonment exceeding six months." In view of the provision of subsection (1) of section 244, Cr.P.C. reproduced above the word used with regard to the evidence of the prosecution, is 'take' and it implies that the Magistrate has not been envisaged by the legislators to compel or force the attendance or production of the prosecution evidence on its own, which is the function and responsibility of the prosecution/prosecutor. Magistrate would be under an obligation to summon proposed prosecution witness only in case when prosecution makes an application in that regard under sub section (2) of section 244, Cr.P.C. and that too, if the Magistrate allows the application considering it fit to do so. The words "if he thinks fit" incorporated in subsection (2) of section 244 ibid imply that a discretion has been vested by the legislature in the court. Whenever an application for summoning of witness or witnesses is moved by either of the parties before it, court has to decide whether such application should be allowed or not. In this regard court may have regard to considerations; whether such application is moved within reasonable time; whether it is moved bona fide; whether such application is not made with ulterior motive of prolonging the trial or any other consideration which may be relevant having regard to the circumstances of a particular case. Under sub-section (3) of section 244 set out above, Magistrate may also require reasonable expenses; diet money of the witness proposed to be summoned, to be deposited in court before issuing the summons or other process for his attendance. Notion perceived by some quarters of legal fraternity that challan itself is an application for summoning the prosecution witnesses is misconceived. Public Prosecutor has to make a conscious decision as to which of the witnesses he proposes to call first from the calendar of witnesses (which is generally prepared by police). The order of production and examination of witnesses may have, depending upon the particular facts and circumstances of a case, a material bearing on the result of trial. This decision of the public prosecutor inter alia involves the consideration of the importance of testimony of a particular witness, his reliability for the case of prosecution, whether or not he has been won over by the defense side and his capacity of divulging facts before the court accurately. If the Magistrate or other court summons witnesses of the prosecution on its own, such important decision of Public Prosecutor is taken away from him unjustifiably and without any legal authority. It would be appropriate here to read provisions of section 493 Code of Criminal Procedure 1898 with section 9(1) of the Punjab Criminal Prosecution Service (Constitution, Functions and Powers) Act 2006 (Act III of 2006). These provisions transpire that public prosecutor is responsible for the conduct of prosecution on behalf of the government. For convenience both the provisions mentioned above are set out below: Section 493. Public Prosecutor may plead in all Courts in cases under his charge. Pleaders privately instructed to be under his direction. "The Public Prosecutor may appear and plead without any written authority before any court in which any case of which he has charge is under inquiry, trial or appeal, and if any private person instructs a pleader to prosecute in any court any person in any such case, the Public Prosecutor shall conduct prosecution, and the pleader so instructed shall act therein, under his directions." Section 9. Conduct of prosecution. (1). "The prosecutor shall be responsible for the conduct of prosecution on behalf of the Government." Having studied these provisions, now it would be pertinent to discuss here what actions fall within the scope of the word 'prosecution'. Literally the word 'prosecution' means to commence or to continue any legal action. Prosecution with regard to the public prosecutor and criminal cases does not mean merely to appear in court on the side of the State and to argue the case for the prosecution, rather it encompasses inter alia, making an opening statement at the start of a criminal trial, applying for- the processes of court; summonses, warrants of arrest, proclamations either for securing or compelling the attendance and evidence of the prosecution witnesses, examining the prosecution witnesses and cross-examining the defense witnesses and also prosecution witnesses, in case they become hostile to the case of prosecution, submission of arguments and assistance to the court at all stages of a criminal case. Therefore Public Prosecutor should take all the pains and responsibility for initiating the procedure for compelling attendance of its witnesses. Such procedure would include applying for summonses, bailable or non bailable warrants of arrest, proclamations under section 87, Cr.P.C. and attachment of property of its witnesses under section 88, Cr.P.C.. All these processes could be issued on the request and application of parties before court. To illustrate the point further, supposing if in a given case, an accused makes the court known the names of the persons, he proposes to call as witnesses in his defense, xould the court proceed to summon those proposed witnesses without any application, in this regard by or on behalf of the accused, the answer is obviously 'No'. The reason behind this is that it is a strategic decision of parties before the court, which are Prosecution and the accused, to produce or withhold a witness, document or any material object. Court cannot overtake such decision of the parties by summoning the witnesses of parties in a mechanical manner, without any application by the parties in that regard, as required and envisaged by the legislature under subsection (2) of section 244 of Code of Criminal Procedure, 1898 mentioned above. This is so because court is required to keep the scales even. In an adversarial system of justice like ours it is a basic concept that the function of the court is to adjudicate upon the cases presented by parties through their respective evidence and not to procure the attendance and production of evidence of any one of the parties on its own motion and the complainant/prosecution is only one of the parties before the court. It is of utmost importance that the position and status of the court be distinguished from that of the prosecution. The court shall maintain its neutral and impartial status. Although court may ensure the compliance of its process for the attendance of any person required by it and in this regard procedure for compelling appearance is available in detail in Chapter VI, Cr.P.C. but there is no provision in Code of Criminal Procedure 1898 which requires any court to compel the attendance and production of prosecution evidence on its own motion. Court shall not lose its much valued impartiality by summoning the prosecution witnesses without any request in this regard by the prosecution. It is prosecutor on whom law lays down the responsibility of conduct of prosecution, it thereby ensues that public prosecutor shall take all the pains and responsibility for initiating and getting the processes enforced from court, for procuring the attendance of its own evidence. What is commonly observed is that prosecutor does not make any application for the summoning of any of the prosecution witnesses nor does he apply for any warrant of arrest for any of his witnesses for compelling their attendance for evidence. All the processes are issued by the court on its own motion and one can safely argue that if the court issues processes of witnesses of the prosecution it should treat the other party (accused) alike. However it is rarely found that court would summon any witness of accused without any application having been filed in that regard. This practice not only violates the legislative intent but is also against the interest of justice. Every person who is accused of an offence before a court, has a right to have a fair trial and the term 'fair trial' would include equal treatment for accused. It is high time to impress upon the public prosecutors that they should consciously file an application under section 244(2), Cr.P.C. in the exercise of their legal right after evaluating the case and devising a strategy for the conduct of trial in each particular case. In this manner public prosecutor would have an opportunity to understand the case right from the beginning and this would help him in performance of his duties with regard to that case later on. Any default in the performance of these duties may hamper criminal trials and consequently the duty of the State to punish offenders.