The Court held that Section 275(3) Cr.P.C. does not mandate recording of evidence in narrative form; the Magistrate has discretion to choose the mode. Since the applicant is a complainant, evidence is not "formal character" under Section 296 Cr.P.C., and affidavit evidence is not permissible.
This page shows the compact analysis of this judgement. The full analysis — procedural history, issue-by-issue holdings with ratio and obiter, advocates, and paragraph-level evidence for every claim — is being added to the record in batches and will appear here when this judgement has been through it.
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPLICATION NO.533 OF 2017
Jayesh Shah … Applicant Vs. M/s. Visa Syndicates and others … Respondents
Mr. Jayesh Shah, Applicant in person. Ms Rita Jain, APP for Respondent-State.
CORAM : R. G. KETKAR, J. DATE : JULY 17, 2017
P.C. :
As the regular Court presided over by Hon'ble Mr. Justice A. K. Menon has passed “Not Before Me” order, the applicant has moved this Court as per the administrative order passed by the Hon'ble the Chief Justice.
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the Indian Evidence Act, 1872 (for short 'Evidence Act') and / or affidavit in compliance of Section 296 of Cr.P.C.
“Reliance was then placed on Sections 274 and 275 of the Criminal Procedure Code which require that evidence be taken down in writing by the Magistrate himself or by his dictation in open Court. It was submitted that video conferencing would have to take place in the studio of VSNL. It was submitted that that this would violate the right of the Accused to have the evidence recorded by the Magistrate or under his dictation in open Court. The advancement of science and technology is such that now it is possible to set up video conferencing equipment in the Court itself. In that case evidence would be recorded by the Magistrate or under his dictation in open Court. If that is done then the requirements of these Sections would be fully met. To this method there is however a draw back. As the witness is now in Court there may be difficulties if he commits contempt of Court or perjures himself and it is immediately noticed that he has perjured himself. Therefore as a matter of prudence evidence by video-conferencing in open Court should be only if the witness is in a country which has an extradition treaty with India and under whose laws contempt of Court and perjury are also punishable.”
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perused the material on record and in particular the impugned orders. Sections 275 and 296 of Cr.P.C. read thus,
“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:
Provided that evidence of a witness under this subsection may also be recorded by audio-video electronic means in the presence of the advocate of the person accused of the offence.
(2) Where the Magistrate causes the evidence to be taken down, he shall record a certificate that, the evidence could not be taken down by himself for the reasons referred to in subsection (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.
(2) The Court may, if it thinks fit, and shall, on the application of the prosecution or the accused, summon and examine any such person as to the facts contained in his affidavit.”
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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. Proviso thereto lays down that evidence of a witness under this sub-section may also be recorded by audio-video electronic means in the presence of the advocate of the person accused of the offence. Sub-section (2) requires Magistrate to record a certificate that, the evidence could not be taken down by himself for the reasons referred to in sub-section (1). A perusal of subsection (3) shows that ordinarily such evidence shall be taken down in the form of a narrative; but discretion is conferred upon the Magistrate to take down, or cause to be taken down, any part of such evidence in the form of question and answer.
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applicant, being the complainant, is of a formal character.
(R. G. KETKAR, J.)
Minal Parab
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3 issues framed by the court
Whether a complainant has a right to record evidence in the form of a narrative under Section 275(3) Cr.P.C.
Whether evidence of a complainant falls under Section 296 Cr.P.C. allowing evidence by affidavit.
Whether the observation in State of Maharashtra Vs. Dr. Praful B. Desai applying to video conferencing is applicable here.
Colour shows how this judgement treated each authority
State of Maharashtra Vs. Dr. Praful B. DesaiDistinguished¶36
(2003) 4 SCC 601 · Who else cites this
3 provisions across 1 enactments
Jayesh Shah
M/s. Visa Syndicates and others
R. G. Ketkar
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
