Wednesday 21 April 2021

Supreme court guidelines modifying practice of recording of evidence as mandated in the case of Bipin Shantilal Panchal

  It was pointed out by learned amici that the practice adopted predominantly in all trials is guided by the decision of this court in Bipin Shantilal Panchal v. State of Gujarat (2001) 3 SCC 1 with respect to objections regarding questions to be put to witnesses. This court had termed the practice of deciding the objections, immediately as “archaic” and indicated what it felt was an appropriate course:

“It is an archaic practice that during the evidence collecting stage,

whenever any objection is raised regarding admissibility of any material in

evidence the court does not proceed further without passing order on such

objection. But the fall out of the above practice is this: Suppose the trial

court, in a case, upholds a particular objection and excludes the material

from being admitted in evidence and then proceeds with the trial and

disposes of the case finally. If the appellate or revisional court, when the

same question is re-canvassed, could take a different view on the

admissibility of that material in such cases the appellate court would be

deprived of the benefit of that evidence, because that was not put on record

by the trial court. In such a situation the higher court may have to send the

case back to the trial court for recording that evidence and then to dispose

of the case afresh. Why should the trial prolong like that unnecessarily on

account of practices created by ourselves. Such practices, when realised

through the course of long period to be hindrances which impede steady

and swift progress of trial proceedings, must be recast or re-moulded to

give way for better substitutes which would help acceleration of trial


When so recast, the practice which can be a better substitute is this:

Whenever an objection is raised during evidence taking stage regarding

the admissibility of any material or item of oral evidence the trial court can

make a note of such objection and mark the objected document tentatively

as an exhibit in the case (or record the objected part of the oral evidence)

subject to such objections to be decided at the last stage in the final

judgment. If the court finds at the final stage that the objection so raised is

sustainable the judge or magistrate can keep such evidence excluded from

consideration. In our view there is no illegality in adopting such a course.

(However, we make it clear that if the objection relates to deficiency of

stamp duty of a document the court has to decide the objection before

proceeding further. For all other objections the procedure suggested above

can be followed.) The above procedure, if followed, will have two

advantages. First is that the time in the trial court, during evidence taking

stage, would not be wasted on account of raising such objections and the court can continue to examine the witnesses. The witnesses need not wait for long hours, if not days. Second is that the superior court, when the same objection is re-canvassed and reconsidered in appeal or revision against the final judgment of the trial court, can determine the correctness of the view taken by the trial court regarding that objection, without bothering to remit the case to the trial court again for fresh disposal. We may also point out that this measure would not cause any prejudice to the parties to the litigation and would not add to their misery or expenses.”{Para 12}

13. It was argued by amici that the procedure, whereby the courts record answers to all questions, regardless of objections, leads to prolonged and lengthy cross examination, and more often than not, irrelevant facts having no bearing on the charge

or the role of the accused, are brought on record, which often result in great prejudice. It is pointed out that due to the practice mandated in Bipin Shantilal Panchal (supra), such

material not only enters the record, but even causes prejudice, which is greatly multiplied when the appellate court has to decide the issue. Frequently, given that trials are prolonged, the trial courts do not decide upon these objections at the final stage, as neither counsel addresses arguments. Therefore, it is submitted that the rule in Bipin Shantilal Panchal (supra) requires reconsideration.

15. Apart from Section 148, there are other provisions of the Evidence Act (Sections 149-154) which define the ground rules for cross examination. During questioning, no doubt, the counsel for the party seeking cross examination has considerable leeway; cross examination is not confined to matters in issue, but extends to all relevant facts. However, if the court is not empowered to rule, during the proceeding, whether a line of questioning is relevant, the danger lies in irrelevant, vague and speculative answers entering the record. Further, based on the answers to what (subsequently turn out to be

irrelevant, vague or otherwise impermissible questions) more questions might be asked and answered. If this process were to be repeated in case of most witnesses, the record would be cluttered with a jumble of irrelevant details, which at best can be distracting,

and at worst, prejudicial to the accused. Therefore, this court is of opinion that the view in Bipin Shantilal Panchal should not be considered as binding. The presiding officer therefore, should decide objections to questions, during the course of the proceeding, or failing it at the end of the deposition of the concerned witness. This will result in decluttering the record, and, what is more, also have a salutary effect of preventing

frivolous objections. In given cases, if the court is of the opinion that repeated objections have been taken, the remedy of costs, depending on the nature of obstruction, and the proclivity of the line of questioning, may be resorted to. Accordingly, the practice mandated in Bipin Shantilal Panchal shall stand modified in the above terms.







Dated: April 20, 2021.

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