Rules for production, use and recording of the Tape-Recorded Evidence in Court incorporated in Criminal Manual issued by the Bombay HC

"24. The Honourable the Chief Justice and Judges, with the previous approval of the Governor under Article 227 of the Constitution of India, are pleased to make the following rules regarding recording of the tape-recorded evidence in Court:

(1) These Rules may be called the Rules for the production, Use and Recording of the Tape-Record Evidence in Courts.

(2) These Rules came into force with effect from 1st August, 1978.

(3) The party producing the tape recorded evidence shall also produce the transcript of the tape record along with the tape.

(4) The Court or its authorised officer who is to accept the tape should accept only such tapes as are under the seal of the party producing them.

(5) Court or such officer shall hear the tape record in order to verify whether the transcript produced alongwith the tape is correct or not and endorse such verification on the transcript record under his signature with date.

(6) The tape shall be kept in safe custody in a cover under the seal of the Court. In case the tape is replayed or the seal is broken for any reason, the tape shall be re-sealed.

(7) The Notice of production of the tape together with the transcript shall be served on the other side through the Court.

(8) Any party to the proceeding may apply to the Court to hear the tape record.

(9) The tape-record would be played within the hearing and sight of an officer appointed by the Court for that purpose and as far as possible in the presence of the other side or its Advocate. The Court on receipt of application may grant the necessary permission. However, the tape shall ordinarily not be played on 3rd or 4th occasion, unless the Court specifically permits hearing of the same. The Court while granting such permission should bear in mind that repeated use and play of the tape may affect the tape and its audibility. The Court may also permit any party to record the voice on the tape, produced in Court, on another tape.

(10) Every Court shall maintain a record showing as to how, when and why the seal of the tape-record was opened and when the tape-record has been resealed. Such record shall be kept in the proceedings alongwith the tape record and its transcript.

(11) The tape in a sealed cover together with its transcript shall be given a separate exhibit.

(12) In Criminal cases where appeal lies to the High Court and when the tape record is not in English, either, wholly or in part, the transcript must be accompanied by an agreed or official English translation of the said transcript or part thereof, as the case may be.

(13) In case of discrepancy or doubt, the Court may direct the tape to be replayed and the transcript record shall be corrected if the Court so directs.

(14) While preparing the paper book for appeal to the High Court the Lower Court shall include therein the transcript in English under Rule 12, and a copy of record referred to in Rule 10 above.

(15) The rules as to the production, preservation and destruction of the Court record should mutatis mutandis apply to the tapes.

(16) The above rules (Rules Nos. 1 to 15) are framed for guidance of the Courts and they should be followed as far as possible and subject to the provisions of the Evidence Act and Code of Civil Procedure."

 IN THE HIGH COURT OF BOMBAY

Criminal Appeal No. 793 of 2013

Decided On: 09.06.2021

Anil Krishnarao Apashingkar Vs. The State of Maharashtra

Hon'ble Judges/Coram:

P.D. Naik, J.

Citation: AIRONLINE 2021 BOM 2759, 2021 ALLMR (CRI) 2273, MANU/MH/1406/2021

Print Page

Procedure for recording confession of accused by Magistrate as per Criminal Manual

 Confessions

17. Accused persons willing to make a confession should be taken for the purpose before a judicial magistrate and ,whenever possible ,before the magistrate who will not eventually try the case. Any Metropolitan Magistrate or Judicial Magistrate may ,whether or not he has jurisdiction in the case, record any confession or statement made to him in the course of an investigation under the code of Criminal Procedure ,1973 or any other law for the time being in force ,or at any time afterwards before the commencement of the inquiry or trial ,as required by Section 164 of the Code of Criminal Procedure 1973.

18. The following instructions are issued for the guidance of the Magistrate recording confessions and statement under section 164 of the Code of Criminal Procedure 1973. They are not intended to fetter the discretion given by the law to Magistrates. The only object with which they are issued is to indicate generally the manner in which the discretion may be exercised.:-

    (i) In the absence of exceptional reasons, confessions should ordinarily be recorded in open Court and during court hours.

Print Page

Provisions of Criminal Manual regarding issuance of Summary A,B, C by Magistrate

 Summaries of Final Orders

24. All the Courts of Session and the Magistrates are directed to specifically note for guidance ,the following instructions for issue of summaries of final orders. In all cases disposed of by them, they should comply with these instructions without prejudice to their statutory powers and judicial discretion :----

(1) Each Magistrate shall,immediately after disposing of a cognizable case , forward through the police Station from which the case came, to the Superintendent or Sub-Divisional Police Officer concerned ,a summary of a final order in Form E. It should be sent in all cases,whether disposed of by trial or otherwise brought to an end by the death,lunacy or escape of the accused or in any other way what-soever. When a case has been tried by a Magistrate, he will issue the summary. In cases tried by the Court of Session, the Magistrate concerned will forward the required summary after the disposal of the case by that Court or by the High Court. When the order of decision of the Magistrate is modified on appeal or revision ,the Magistrate who sent the original summary will sent again a fresh summary of such modified order or decision in Form F.

Print Page

Useful Free Reference Material on Trial Court Procedure in Maharashtra

 FOR CIVIL COURTS -

* Civil Manual (issued by Bombay High Court for Trial Court Procedure)
https://court.mah.nic.in/courtweb/index_eng.php#
(click on the information centre).

* Criminal Manual (issued by Bombay High Court for Trial Court Procedure)
https://court.mah.nic.in/courtweb/static_pages/page5b.htm
(click on the information centre)

Print Page

Bombay high court Criminal Manual Amendment Gazette Notification dated 14th July 2022.

 https://drive.google.com/file/d/1-fZSsG2vu-CYLxL9zs3oD_sq7MbCR90q/view?usp=sharing

Print Page

Questions and answers on law Part 14

Q.1:-Whether a special court under Pocso Act can grant Anticipatory bail to an accused charged with section 8 of pocso act?

Ans:-Section 8 of POCSO Act Whoever commits sexual assault shall be punished with the imprisonment of either description for a term which shall not less than three years but which may extend to five years, and shall also be liable to fine.

In my opinion, as this offence is punishable with imprisonment for more than three years, it is non bailable and application for anticipatory bail is maintainable. Caselaw on the point is 

With Section 8 Of The Pocso Act vs In Re: Azad Paswan @ Ajad Pasoyan & ... on 15 January, 2020 

https://indiankanoon.org/doc/188410386/.

Any other view is welcomed

Print Page

Whether accused is absolved of making payment of fine if he has undergone the sentence of default imprisonment?

1) Section 70 of IPC runs as follows :

"The fine, or any part thereof which remains unpaid, may be levied at any time within six years after the passing of the sentence, and if, under the sentence, the offender be liable to imprisonment for a longer period than six years, then at any time previous to the expiration of that period; and the death of the offender does not discharge from the liability any property which would, after his death, be legally liable for his debts."

2) The authors of the Indian Penal Code observe in respect of imprisonment in default of payment of fine :

"We do not mean that this imprisonment shall be taken in full satisfaction of the fine. We cannot consent to permit the offender to choose whether he will suffer in his person or in his property. To adopt such a course would be to grant exemption from the punishment of fine to those very persons on whom it is peculiarly desirable that the punishment of fine should be inflicted, to those very persons who dislike that punishment most, and whom the apprehension of that punishment would be most likely to restrain. We therefore propose that the imprisonment which an offender has undergone shall not release him from the pecuniary obligation under which he lies. His person will, indeed, cease to be answerable for the fine; but his property will for a time continue to be so. 

3) It is thus clear that section 70 meant, to lay down what appears to us to be very clear provision for recovery of the claims of the state against offenders against public justice, in respect of fine even when the accused underwent sentence of imprisonment in default of payment of fine; and it is the duty of the Courts to exercise the powers under section 70.

4) Having regard to the provisions of section 70 of the Indian Penal Code, it is clear that an accused cannot escape his liability of payment of fine by undergoing the default sentence and make a mockery of the sentence of fine, which is many times heavy, running into thousands of rupees or nullify the order with regard to the expenses and compensation.

36. We, therefore, upon perusal of the report of the Deputy Registrar and after hearing the Public Prosecutor and in exercise of the powers of this Court under section 401 of the Code of Criminal Procedure, 1973, lay down that, as a matter of practice, before returning the writs for recovery of the fine, the subordinate Courts should apply their minds to the provisions of section 421 of the new Criminal Procedure Code and decide whether any warrant is to be issued or whether any other order is to be passed in accordance with section 421, in the light of the observations made herein above.

37. The attention of all the Courts, subordinate to this Court is, therefore, invited to the provisions contained in section 70 of the Indian Penal Code, which must be read along with section 421 of the new Criminal Procedure Code and also the rules framed by the Government under section 386 (2) of the Criminal Procedure Code, 1898, with regard to the manner in which the execution is to be levied, which are continued until modified or superseded under section 484 (2) of the new Criminal Procedure Code.

IN THE HIGH COURT OF BOMBAY

Cri. Appeal No. 1264 of 1973

Decided On: 28.02.1977

 In Re: Report By Deputy Registrar High Court, Appellate Side Seeking Directions

Hon'ble Judges/Coram:

G.N. Vaidya and P.B. Sawant, JJ.

Citation: MANU/MH/0380/1977

Print Page

Guidelines of Bombay High Court under Probation of Offenders Act

 Criminal
Manual issued by the High Court in Chapter XI paragraph 4
has given guidelines under the Probation of Offenders Act
as under :-
“4. The Act lays down three
distinctive methods of treatment for different
classes of offenders :-
(a) Section 3 deals exclusively
with first offenders, who are convicted of an
offence punishable with not more than two
years' imprisonment. It provides for release
of such offenders after due admonition. This
method of treatment is likely to be effective
only for a small number of offenders, as it
provides neither for bonds nor sureties and
merely sends the offender back, without any
constructive help, to live in the same
conditions, in which he lived when he
committed the offence.
(b) Section 4 (1) provides for
release on probation. It lays down that the
offender should enter into a bond and he may
also be required to give sureties. It would
normally be advisable to take sureties in
addition to personal bonds, as sureties are
themselves a guarantee of some efforts
towards reform and a safeguard against the

offender removing himself outside the
jurisdiction of the Court and breaking the
conditions of the bond entered into by him.
(c) Section 4 (2) provides for
release under the supervision of a Probation
Officer. This is the most constructive type of
treatment. Experience has proved that
offenders are far more likely to make good,
when placed under the guidance of a
Probation Officer. It is, therefore, advisable
that even in the case of first offenders, they
should be dealt with under Section 4(2) in
preference to discharge after admonition
under Section 3.
(d) Under Section 4(3), the
Court has power, while making a supervision
order, to direct additional conditions to be
inserted in the bond to be entered into by the
offender under Section 4(1), and in doing so
the Court must have regard to the particular
circumstances of each individual case.
The terms and conditions of the
supervision order shall be explained to the
offenders and one copy of the supervision
order shall be furnished forthwith to each of
the offenders, the sureties, if any, and the
Probation Officer concerned. The form of

supervision order has been prescribed under
the Rules made under the Act.
(e) In suitable cases, the
offender may be directed under Section 5 to
pay compensation and cost of proceedings to
the person to whom loss or injury has been
caused.
(f) During the period of his
probation, the offender has to keep away
from crime and maintain good behaviour. If
he fails to do so, he may be sentenced for the
offence of which he was convicted, or on such
first time failure, a penalty of fine not
exceeding fifty rupees may be imposed upon
him under Section 9 (3) of the Act.
(g) According to the mandatory
provision of Section 6, when any person
under 21 years of age is found guilty of an
offence punishable with imprisonment (not
for life), before passing any order of sentence
of imprisonment, the Court shall call for a
report from the District Probation Officer,
consider such report, if any, and then record
its reasons and pass such order to sentence
of imprisonment (except for life), as it deems
fit in the circumstances of the case.”

33] Keeping in view these guidelines as well as the
provisions of the Probation of Offenders Act, being major is
not a disqualification for consideration under the Probation
of Offenders Act. If the person has not been found guilty of
the offence punishable with death or imprisonment for life,
the provisions of the Act need to be considered, specially
when the accused is first time offender. The facts of the
case, social background and personal factors of the
accused are relevant. Under the proviso to Sub Section 1
of Section 4 of the Probation of Offenders Act, the Court is
required to ascertain whether the accused has a fixed place
of abode or regular occupation. Sub Section 2 of Section 4
lays down that the Court “shall” take into consideration the
report, if any, of the probation officer concerned in relation
to the case. Thus, calling of the report of probation officer is
necessary while considering the provisions of the Probation
of Offenders Act, 1958. In the present matter, the judgment
of the trial Court does not show that it called for the report

of probation officer.

IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
CRIMINAL APPEAL NO. 596 OF 2011

Bapu Vithalrao Jadhav,  Vs State of Maharashtra,

 CORAM : S.S. SHINDE &
 A.I.S.CHEEMA, JJ.
Pronounced on: 22.09.2015
Citation: 2016 ALLMR(CRI)2107

Print Page

Guidelines to Magistrate regarding reference of name of accused in proceeding

 Chapter VI, Para 23 of the Criminal
Manual reads as under:
"23. It is desirable in judicial
proceedings to prevent, as much as
possible, doubt as to the identity of the
person referred to therein. It frequently
happens that the same individual is known
by more names than one. Thus sometimes only
the surname, sometimes only the name of the
caste, or occupation or the village of the
individual is mentioned or he is spoken of

by a nickname, such as Bapu Saheb, Nana
Saheb or Bahau Saheb. Such variations in
description require explanation to render
them intelligible to an appellate Court. A
court of first instance should, therefore,
take care not only to ascertain, but to
make clear by evidence duly recorded, the
identity of any individual who is so
referred to under varying appellations and
if such an individual is an accused person,
his name and serial number according to the
chargesheet
should be cited in any passage
in which he is otherwise designated."
It is clear that High Court has laid down
guidelines requiring reference to be made to
accused person by name as well as serial Number
according to the chargesheet,
in the proceedings.
Had the above guidelines been strictly followed,
the obvious discomfort to the Court could have
been avoided. In the Marathi version of the
evidence, it is clearly recorded that the error
was on the part of the Court. No specific
guidelines are required for trial Courts to
understand that judicial records need to be clear
and specific. Still, the High Court has in clear
terms prescribed guidance in this regard, as
mentioned above. It is expected that the trial
Courts should strictly follow the Manual.
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
CRIMINAL APPEAL NO.86 OF 2000
 Suryakant s/o Chandrakant Gade @ Surya,
V
The State of Maharashtra,


CORAM: A.I.S. CHEEMA, J.

DATE OF PRONOUNCING JUDGMENT : 28TH AUGUST, 2014.
Citation; 2015ALLMR(cri)602

Print Page