Supreme Court: Public prosecutor putting leading questions to its own witnesses will offend right to fair trial of accused

Leading question to be one which indicates to the witnesses the real or supposed fact which the prosecutor (plaintiff) expects and desires to have confirmed by the answer. Leading question may be used to prepare him to give the answers to the questions about to be put to him for the purpose of identification or to lead him to the main evidence or fact in dispute. The attention of the witness cannot be directed in Chief examination to the subject of the enquiry/trial. The Court may permit leading question to draw the attention of the witness which cannot otherwise by called to the matter under enquiry, trial or investigation. The discretion of the court must only be controlled towards that end but a question which suggest to the witness, the answer the prosecutor expects must not be allowed unless the witness, with the permission of the court, is declared hostile and cross-examination is directed thereafter in that behalf. Therefore, as soon as the witness has been conducted to the material portion of his examination, it is generally the duty of the prosecutor to ask the witness to state the facts or to give his own account of the matter making him to speak as to what he had seen. The prosecutor will not be allowed to frame his questions in such a manner that the witness by answering merely "yes" or "no" will give the evidence which the prosecutor wishes to elicit. The witness must account for what he himself had seen. Sections 145 and 154 of the Evidence Act is intended to provide for cases to contradict the previous statement of the witnesses called by the prosecution. Sections 143 and 154 provides the right to cross-examination of the witnesses by the adverse party even by leading questions to contradict answers given by the witnesses or to test the veracity or to drag the truth of the statement made by him. Therein the adverse party is entitled to put leading questions but Section 142 does not give such power to the prosecutor to put leading questions on the material part of the evidence which the witnesses intends to speak against the accused and the prosecutor shall not be allowed to frame questions in such a manner which the witness by answering merely yes or no but he shall be directed to give evidence which he witnessed. The question shall not be put to enable the witness to give evidence which the prosecutor wishes to elicit from the witness nor the prosecutor shall put into witness's mouth the words which he hoped that the witness will utter nor in any other way suggest to him the answer which it is desired that the witness would give. The counsel must leave the witness to tell unvarnished tale of his own account. Sample leading questions extracted hereinbefore clearly show the fact that the prosecutor led the witnesses what he intended that they should say the material part of the prosecution case to prove against the appellant which is illegal and obviously unfair to the appellant offending his right to fair trial enshrined under Article 21 of the Constitution. It is not a curable irregularity. {Para 11}

 IN THE SUPREME COURT OF INDIA

Criminal Appeal No. 326 of 1993 

Decided On: 27.04.1993

Varkey Joseph Vs. State of Kerala, 

Hon'ble Judges/Coram:

K. Ramaswamy and R.M. Sahai, JJ.

Author: K. Ramaswamy, J.

Citations: 1993 AIR 1892, 1993 SCR (3) 390, AIR 1993 SUPREME COURT 1892, 1994 AIR SCW 956, 1993 CRIAPPR(SC) 304, 1993 SCC(CRI) 1126, 1993 SC CRIR 587, 1993 (3) JT 421, 1993 (3) SCR 676, (1993) 1 LS 35, (1993) 3 CURCRIR 271, (1993) SC CR R 433, (1993) 2 CRIMES 449, (1994) 1 MADLW(CRI) 176, (1993) 2 ALLCRILR 344,MANU/SC/0295/1993

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Andhra Pradesh HC: Whether the Session court can permit prosecution to examine witnesses whose names are not mentioned in list of witnesses of chargesheet?

 The learned Special Assistant Public Prosecutor contends that the proposed witnesses are not new witnesses and they were examined by the police during investigation of the case and their statements were also recorded under Section 161 CrPC., but due to inadvertently, their names were not mentioned in the list of witnesses filed with the Police Report (charge sheet) and therefore, only to assist the Court to arrive at a just decision, the prosecution intends to examine them and copies of the statements recorded under Section 161 CrPC., of the said witnesses were also been provided to the accused, and the accused has a right of cross-examination and therefore, it would not cause any prejudice to the accused. {Para 4}

22. In the case on hand, there is no dispute that the prosecution has provided copies of the statements of the proposed witnesses recorded by the Investigating Officer during investigation, to the accused. The contention of the prosecution is that the proposed two witnesses are the eye-witnesses to the occurrence of the incident in the case and the Investigating Officer recorded their statements under Section 161 CrPC during investigation but, inadvertently they were not filed along with the Report (Charge Sheet) under Section 173 CrPC and hence, the prosecution intends to produce the said witnesses in support of the prosecution as evidence for prosecution. Hence, the contention of the accused that the proposed evidence produced by the prosecution which is not mentioned in the list of witnesses and documents filed by the prosecution along with the police report (charge sheet) would cause prejudice to him if allowed, is not tenable in law.

IN THE HIGH COURT OF ANDHRA PRADESH AT AMARAVATI

Criminal Petition No. 1499 of 2020

Pattivada Balaji Vs. The State of Andhra Pradesh

Hon'ble Judges/Coram:

B.V.L.N. Chakravarthi, J.

Decided On: 23.09.2023.

Citation:  MANU/AP/1650/2023.

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Supreme Court: Spying in Matrimony: When Privacy Gives Way to Fair Trial Rights Under Section 122 of Evidence Act

 In matrimonial disputes under the Indian Evidence Act, 1872, Section 122, the court held that the provision comprises two parts: “compellability” and “permissibility” of spousal communications. A spouse cannot be compelled to disclose confidential communication made by the other, and consent for disclosure lies with the spouse who made the communication. The provision aims to protect the sanctity of marriage, not individual fundamental right to privacy under Article 21 of the Constitution of India. Consequently, the right to privacy is not a relevant consideration in such disputes. Secretly recorded telephonic conversations between spouses are admissible as evidence in matrimonial proceedings under the exception carved out within Section 122, which must be balanced with the right to a fair trial, also guaranteed by Article 21. Section 122 does not apply horizontally and recognizes the rights to a fair trial, to produce relevant evidence, and to prove one’s case against the spouse. The court rejected the argument that such evidence would disturb domestic harmony, noting that snooping between spouses indicates a broken relationship. The court clarified that while the content of a common law right may resemble a fundamental right, they are differentiated by the duties’ incidence—on private entities versus the State. Admissibility of secretly obtained evidence requires satisfying a three-fold test of relevance, identification, and accuracy. Recording conversations without the speaker’s consent or knowledge does not per se bar admissibility. Appeal allowed. (Relied on: M.C. Verghese v. T.J. Poonan, (1969) 1 SCC 37; R. M. Malkani v. State of Maharashtra, (1973) 2 SCR 417).

 IN THE SUPREME COURT OF INDIA

Civil Appeal No. 9489 of 2025 

Decided On: 14.07.2025

Vibhor Garg Vs. Neha

Hon'ble Judges/Coram:

B.V. Nagarathna and S.C. Sharma, JJ.

Author: B.V. Nagarathna, J.

Citation:  MANU/SC/0902/2025,2025 INSC 829

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Delhi HC: Balancing Substantive Justice with Proportionality and Privacy Protections in Spousal Financial Disclosure

 

 A balanced scale symbolizing justice weighing financial documents against privacy protection

 The judgment from the High Court of Delhi concerns a matrimonial dispute where the Wife sought dissolution of marriage on grounds including adultery and cruelty. One key aspect of the judgment relates to the production of the Husband’s financial documents during the litigation process.

Context

·       The Wife applied under Order XI Rule 14 of the Code of Civil Procedure (CPC), seeking production of various financial documents of the Husband.

·       These documents included credit card statements, UPI transaction records, demat account statements, paytm transactions, Amazon purchase records, ESOP details, and statements from multiple years.

·       The Wife argued these documents were necessary not only to substantiate adultery but also to assess the Husband’s financial capacity for determining permanent alimony under Section 25 of the Hindu Marriage Act (HMA), 1955.

Family Court’s Approach

·       The Family Court partially allowed the application, permitting production of financial documents at Serial Nos. (i) to (viii), (x), (xii), and (xiii), essentially covering relevant bank and credit card statements, investment records, and documents evidencing income and assets.

·       It rejected other requests, including WhatsApp, Microsoft Teams, Facebook Messenger chats, FASTag records, leave records, hotel bookings, and travel details, on the ground that they amounted to fishing and roving inquiries beyond the scope of pleadings.

Husband’s Contentions

·       The Husband contended that the application for financial documents was premature since alimony claims arise only after the divorce decree.

·       He also argued the documents sought were irrelevant to the current stage, overly broad, and an invasion of privacy.

·       He claimed compliance with disclosure rules as per Rajneesh v. Neha (2021) and emphasized professional confidentiality concerns.

·       He further asserted some documents were not under his control and that the Wife’s requests were a fishing expedition unsupported by specific pleadings.

The High Court’s Findings on Financial Documents

·       The Court recognized the wide but not unlimited scope of discovery under Order XI Rule 14, emphasizing that documents sought must be relevant to the matters in dispute.

·       It stressed the need for a practical and flexible approach rather than a blanket rejection of discovery applications on grounds of speculation.

·       The Court held that the Wife is entitled to documents specifically related to her legally wedded Husband and the allegations—documents tied to a particular person, period, and issue.

·       It found the Family Court’s partial allowance appropriate and reasoned, permitting production of documents directly pertinent to the Wife’s claims and rejecting those beyond the pleadings or unrelated to financial standing or maintenance claims.

·       The judgment emphasized balancing the Wife’s right to evidence with the need to protect the Husband from undue fishing, harassment, or intrusion into unrelated private matters.

·       The Court allowed production of the financial documents at Serial Nos. (i) to (viii), (x), (xii), and (xiii) in a manner proportional to the issues in dispute.

·       It concluded that allowing these financial disclosures does not constitute an abuse of the discovery process and is justified for a fair adjudication of claims.

Conclusion

The judgment confirms that in matrimonial disputes:

·       Courts can order production of financial documents relevant to alimony, maintenance, and proving adultery.

·       Discovery must be specific, relevant, and proportionate to the pleaded issues.

·       Courts will reject irrelevant, speculative, or overly intrusive disclosure applications to protect privacy.

·       The court exercises a balanced discretion to ensure fair access to necessary evidence while preventing fishing expeditions.

·       The Husband was directed to produce the specified financial records to facilitate effective legal proceedings, subject to confidentiality safeguards.

This decision affirms the principle that evidence production in matrimonial cases must support substantive justice without violating proportionality and privacy protections.

 IN THE HIGH COURT OF DELHI AT NEW DELHI

 MAT.APP.(F.C.) 251/2025 and CM APPL. 50033/2025

MS. TANVI CHATURVEDI Vs MS. SMITA SHRIVASTAVA & ANR.

CORAM:

HON'BLE MR. JUSTICE ANIL KSHETARPAL

HON'BLE MR. JUSTICE HARISH VAIDYANATHAN

SHANKAR

Author: ANIL KSHETARPAL, J.

Judgment pronounced on: 29.08.2025.

Citation: 2025 DHC 7474 DB.

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Delhi HC: Court Can Seek Mobile Location of Spouse to Ascertain Adultery in Matrimonial Disputes: A Detailed Analysis

 

 Introduction

The intersection of digital privacy rights and matrimonial law has become a critical area of jurisprudence in contemporary India. The recent Delhi High Court judgment in Ms. Tanvi Chaturvedi v. Ms. Smita Shrivastava & Anr.Citation: 2025 DHC 7474 DB.  marks a significant milestone in establishing the legal framework for courts to seek mobile location data and Call Detail Records (CDRs) to ascertain adultery in matrimonial disputes. This comprehensive analysis examines the evolving legal position on courts' authority to collect digital evidence in matrimonial proceedings while balancing fundamental privacy rights with the imperative of fair trial.

Legal Framework for Mobile Location Data Collection

Constitutional Foundation

Read full judgment here: Click here.

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The Constitutional Dialectic: Reconciling Privacy, Fairness, and Marital Sanctity in India's Digital Age

 Abstract

The Supreme Court of India's recent landmark judgment in Vibhor Garg vs. Neha (2025) represents a pivotal constitutional moment that redefines the delicate equilibrium between fundamental rights within the matrimonial domain. This decision transcends traditional evidence law principles, offering profound insights into the evolving jurisprudence of privacy rights, fair trial guarantees, and the constitutional architecture governing private relationships in contemporary India. This article examines the Court's nuanced approach to balancing competing constitutional imperatives while addressing the complex interplay between vertical and horizontal application of fundamental rights.

Introduction: The Constitutional Crossroads

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Secretly Recorded Spousal Conversations in Matrimonial Proceedings: Supreme Court’s Landmark Judgment Balances Privacy and Fair Trial Rights

 

The Supreme Court of India, in a landmark judgment dated July 14, 2025, in Vibhor Garg vs. Neha, has decisively addressed the contentious issue of the admissibility of secretly recorded conversations between spouses in matrimonial disputes. This ruling marks a significant turning point at the crossroads of privacy rights, evidence law, and matrimonial justice, offering much-needed clarity for courts, advocates, and litigants navigating these sensitive terrains.

Background: Privacy vs. Evidence in Matrimonial Litigation

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Bombay HC: Non-Examination Of Sexual Assault Victim Or Officer Who Recorded Her Statement Amounts To Denial Of Fair Trial To Accused

In the above context, it would be pertinent to note herein that the prosecution has placed heavy reliance on the version of the victim as brought on record through her mother (PW 1) so as to bring home the charge brought against the Accused/Appellant under Sections 376(2)(f) and 377 of the IPC. Notwithstanding the same, as has been noted above, the victim/prosecutrix has not been examined as a witness. Sections 25 and 26 of the POCSO Act, 2012 lays down specific provisions for recording the statement of a child. As per Section 26(2) the Magistrate/police can even take the assistance of a Translator or an Interpreter while recording the statement of the child. Notwithstanding the same, neither the child has been examined as a witness nor has the PSI Ghodke, who had recorded the victim's statement called as a witness by the prosecution. The failure on the part of the prosecution to examine the victim or the PSI, without any just explanation, in our considered opinion would amount to denial of an opportunity to the accused to prove his innocence and therefore, in the facts of the case, would constitute denial of fair trial to the accused. {Para 41}

 IN THE HIGH COURT OF BOMBAY

Criminal Appeal No. 188 of 2023

Decided On: 14.08.2025

Deepak Babasaheb Gaikwad Vs. The State of Maharashtra and Ors.

Hon'ble Judges/Coram:

Suman Shyam and Shyam C. Chandak, JJ.

Author: Suman Shyam, J.

Citation: 2025:BHC-AS:35291-DB,MANU/MH/5049/2025

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Rajasthan HC: High Court Affirms Accused’s Right to Seek Call and Location Details of Prosecution Witnesses During Prosecution Evidence

 The petitioner herein is under-trial being accused serious offence under Section 302 of IPC. If he is held guilty, the consequence thereof may result into death penalty and/or conviction for life imprisonment. Any negligence or dereliction in adducing of the evidence, needless to say, will result in miscarriage of justice and severely jeopardize the defence of the accused. {Para 12}

13. On a Court query, it transpires that currently prosecution testimony is being recorded by the trial court. Given the work load, it may so happen that at the stage of defence evidence, owing to the delay, the call details and location details, which the accused have been advised to adduce in their evidence, may be deleted from the data bank of the service provider of the mobile network of which the accused as well as other witnesses are subscribers.

15. Section 95, supra, thus allows the court to direct postal authorities to produce documents or records that are relevant to a pending trial. The section explicitly grants courts the authority to order the preservation and production of such records, irrespective of whether the documents are in the custody of the accused or not. As per Section 95, the court can direct service providers to produce and retain the required records even before the defense stage, ensuring that these documents are available when needed. This provision thus supports the petitioners' plea to secure the records to avoid their deletion later on by sheer passage of time.

15.1. I am of the view that in the modern day context, postal authority is to be read in a way so as to mean and include even the telecom authority which is a similar service provider qua the electronic data it preserves on behalf of and, delivers, to its consumers. Accordingly, any document or electronic data or a thing, which is not in custody of the accused but with the third party, i.e. postal authority or the telegraph/telecom authority/service provider, but, at the same time, it is relevant for the purpose of the pending trial can be directed by the trial court to be produced in the court as a piece of evidence.

16. If by the time the stage of defense evidence is reached, the call details and location details, which the accused have been advised to adduce in their evidence, have already been deleted from the data bank of the service provider of the mobile network, then the petitioner would be deprived of valuable opportunity of producing their evidence and would thus be seriously prejudiced in his defence.

17. Trite it may sound, but procedure being the handmaid of justice, should not be allowed to thwart justice. Procedural rules exist to facilitate justice, not to hinder it. If strict adherence to procedural rules leads to the destruction of evidence and deprives the accused of a fair chance to defend themselves, the court should exercise its discretion to deviate from the norm. The court should use its powers to ensure that procedural delays do not result in an injustice. Allowing the preservation of electronic records before they are lost is essential for procedural fairness and the integrity of the judicial process.

18. Moreover, the right to a fair trial is enshrined in Article 21 of the Constitution of India, which guarantees the right to life and personal liberty. Personal liberty includes the right to defend oneself in a criminal prosecution. Any deprivation of the accused's ability to present crucial evidence, such as call details and location records, would constitute a violation of this fundamental right. The prosecution is expected to prove its case beyond a reasonable doubt. Similarly, the accused must be given every reasonable opportunity to contest the evidence and present their defense. Failure to preserve critical evidence like call and location details severely hampers the accused's ability to mount a defense, undermining the concept of a fair trial. Courts are duty-bound to avoid miscarriage of justice. Allowing key evidence to be lost due to procedural delays would also result in an unfair trial, which could lead to a wrongful conviction or harsher punishment (including life imprisonment or even the death penalty in this case). By not securing crucial evidence for the defense (which is in the possession of a third party), the court would inadvertently tip the balance in favor of the prosecution, thus creating a disparity which must be obviated.

Ratio: The court at the stage of prosecution evidence, on the application of accused can direct telecom authority/service provider to produce call details and location details of prosecution witnesses.

 IN THE HIGH COURT OF RAJASTHAN AT JODHPUR

S.B. Criminal Misc(Pet.) No. 5372/2024

Mala Ram Vs. State of Rajasthan

Hon'ble Judges/Coram:

Arun Monga, J.

Decided On: 04.09.2024

Citation: 2024:RJ-JD:36831, MANU/RH/1477/2024.

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Digital Privacy vs Fair Trial: High Court's Game-Changing Verdict on WhatsApp Evidence in Family Disputes

 Landmark Ruling Expands Digital Evidence Admissibility in Matrimonial Cases

In a groundbreaking judgment that could reshape how digital evidence is treated in family disputes, the Madhya Pradesh High Court has ruled that WhatsApp chats obtained through surveillance—even without consent—can be admitted as evidence in family court proceedings if they assist in resolving matrimonial disputes.

Case Background: Digital Surveillance in Marriage

The case of Smt. Anjali Sharma vs. Raman Upadhyay (M.P. No. 3395/2023)Decided On: 16.06.2025, involved a marriage that took place on December 1, 2016, with a daughter born in October 2017. Th dispute arose when the husband filed for divorce under Section 13 of the Hindu Marriage Act, 1955, alleging cruelty and adultery.

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Whether session court can decide criminal appeal or criminal revision in absence of accused?

 Sessions courts in India have specific limitations regarding deciding criminal appeals and revisions in the absence of the accused, with established legal principles that prioritize fair trial and due process.

General Principle Against Deciding in Absence

Criminal cases, whether trials, appeals, or revisions, should generally not be decided against an accused in their absence. The Supreme Court has consistently held that "criminal case, whether trial, appeal or revision should not be decided against accused in absence of his counsel". This principle stems from Article 21 of the Constitution, which guarantees protection to life and personal liberty.

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Supreme Court: Prosecution In All Criminal Cases Shall Furnish List Of Statements, Documents, Material Objects & Exhibits Not Relied Upon By Investigating Officer

 In this manner, the public prosecutor, and then the trial court's scrutiny, both play an essential role in safeguarding the Accused's right to fair investigation, when faced with the might of the state's police machinery. {Para 177}

178. This view was endorsed in a recent three judge decision of this Court in Criminal trials guidelines regarding Inadequacies and Deficiencies, In Re v. State of Andhra Pradesh   MANU/SC/0292/2021 : (2021) 10 SCC 598. This Court has highlighted the inadequacy mentioned above, which would impede a fair trial, and inter alia, required the framing of Rules by all states and High Courts, in this regard, compelling disclosure of a list containing mention of all materials seized and taken in, during investigation-to the Accused. The relevant draft guideline, approved by this Court, for adoption by all states is as follows:

4. SUPPLY OF DOCUMENTS UNDER SECTIONS 173, 207 AND 208 CODE OF CRIMINAL PROCEDURE

Every Accused shall be supplied with statements of witness recorded Under Sections 161 and 164 Code of Criminal Procedure and a list of documents, material objects and exhibits seized during investigation and relied upon by the Investigating Officer (I.O.) in accordance with Sections 207 and 208, Code of Criminal Procedure..

Explanation: The list of statements, documents, material objects and exhibits shall specify statements, documents, material objects and exhibits that are not relied upon by the Investigating Officer.

179. In view of the above discussion, this Court holds that the prosecution, in the interests of fairness, should as a matter of rule, in all criminal trials, comply with the above rule, and furnish the list of statements, documents, material objects and exhibits which are not relied upon by the investigating officer. The presiding officers of courts in criminal trials shall ensure compliance with such rules.

 IN THE SUPREME COURT OF INDIA

Criminal Appeal Nos. 248-250 of 2015

Decided On: 20.05.2022

Manoj and Ors. Vs. State of Madhya Pradesh

Hon'ble Judges/Coram:

U.U. Lalit, S. Ravindra Bhat and Bela M. Trivedi, JJ.

Author: S. Ravindra Bhat, J.

Citation: Citation: 2022 INSC 606, MANU/SC/0711/2022.

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What are Principal Features of Fair Trial Under Indian Law?

 The right to a fair trial is a fundamental aspect of the Indian legal system, enshrined primarily in Article 21 of the Constitution. This right aims to ensure justice and protect individual liberties against arbitrary state action. Below are the principal features of a fair trial as recognized under Indian law.

1) Presumption of Innocence

- Every accused person is presumed innocent until proven guilty. This principle is vital to the criminal justice system, ensuring that the burden of proof lies with the prosecution, which must establish guilt beyond a reasonable doubt.

2) Right to Legal Aid

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Supreme Court: Criminal trial will vitiate if informant does the investigation

In view of the conflicting opinions expressed by different two Judge Benches of this Court, the importance of a fair investigation from the point of view of an Accused as a guaranteed constitutional right Under Article 21 of the Constitution of India, it is considered necessary that the law in this regard be laid down with certainty. To leave the matter for being determined on the individual facts of a case, may not only lead to a possible abuse of powers, but more importantly will leave the police, the Accused, the lawyer and the courts in a state of uncertainty and confusion which has to be avoided. It is therefore held that a fair investigation, which is but the very foundation of fair trial, necessarily postulates that the informant and the investigator must not be the same person. Justice must not only be done, but must appear to be done also. Any possibility of bias or a predetermined conclusion has to be excluded. This requirement is all the more imperative in laws carrying a reverse burden of proof.

26. Resultantly, the appeal succeeds and is allowed. The prosecution is held to be vitiated because of the infraction of the constitutional guarantee of a fair investigation. The Appellant is directed to be set at liberty forthwith unless wanted in any other case.

IN THE SUPREME COURT OF INDIA

Criminal Appeal No. 1880 of 2011

Decided On: 16.08.2018

 Mohan Lal  Vs.  The State of Punjab

Hon'ble Judges/Coram:

Ranjan Gogoi, R. Banumathi and Navin Sinha, JJ.

Citation: AIR 2018 SC 3853, MANU/SC/0857/2018

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Right of a husband to get Fair trial Vs Right of privacy of wife

1)  In the divorce proceedings, the husband filed a Compact Disc (CD) purporting to contain an audio-video

recording of the wife supposedly speaking with her lady friend, by name Sugandha, on phone and talking about the husband and his family in a manner, which the husband claims was derogatory, defamatory and constituted cruelty to him.

2) The wife opposed the CD being brought on record on the ground, firstly, that the contents of the CD were tampered with and were therefore not authentic ; and secondly, that the contents of the CD were not admissible in evidence since they were a

recording of a ‘private’ conversation that the wife had had with a friend, which had been secretly recorded by the husband, without the knowledge or consent of the wife, in breach of her fundamental right to privacy.

3)  On the other hand, it is the husband's contention that although privacy

has been recognised by the Supreme Court as a fundamental right, this right

is not absolute but is subject to exceptions. Relying upon other judicial

precedents, it is urged that the husband was entitled to establish cruelty on

the wife’s part and to prove his case seeking dissolution of marriage on that

ground ; and in these circumstances, the wife's right to privacy must give

way to the husband's right to bring evidence to prove his case, else the

husband would be denied the right to fair trial guaranteed under Article 21

of the Constitution. It is of course also argued on behalf of the husband, that

section 14 of the Family Courts Act specifically empowers a Family Court

to receive evidence, if in its opinion such evidence will assist the court to

deal effectively with the dispute, regardless of whether the same is otherwise

relevant or admissible under the Evidence Act.
4) While a litigating party certainly has a right to privacy, that right must

yield to the right of an opposing party to bring evidence it considers relevant

to court, to prove its case. It is a critical part of the hallowed concept of fair

trial that a litigating party gets a fair chance to bring relevant evidence

before court. It is important to appreciate that while the right to privacy is

essentially a personal right, the right to a fair trial has wider ramifications

and impacts public justice, which is a larger cause. The cause of public

justice would suffer if the opportunity of fair trial is denied by shutting-out

evidence that a litigating party may wish to lead at the very threshold.

24. Since no fundamental right under our Constitution is absolute, in the

event of conflict between two fundamental rights, as in this case, a contest

between the right to privacy and the right to fair trial, both of which arise

under the expansive Article 21, the right to privacy may have to yield to the right to fair trial.

5)  If it were to be held that evidence sought to be adduced before a Family Court should be excluded based on an objection of breach of privacy or some other cognate right, then in many a case the provisions of section 14 would be rendered nugatory and dead-letter. It must be borne in mind that Family Courts have been established to deal with what are essentially

sensitive, personal disputes relating to dissolution of marriage, restitution of conjugal rights, legitimacy of children, guardianship, custody, and access to minors; which matters, by the very nature of the relationship from which

they arise, involve issues that are private, personal and involve intimacies. It

is easily foreseeable therefore, that in most cases that come before the

Family Court, the evidence sought to be marshalled would relate to the private affairs of the litigating parties. If section 14 is held not to apply in its full expanse to evidence that impinges on a person's right to privacy, then section 14 may as well be effaced from the statute. And yet, falling back upon the general rule of evidence, the test of admissibility would only be

relevance ; and accordingly, even ignoring section 14, fundamental considerations of fair trial and public justice would warrant that evidence be received if it is relevant, regardless of how it is collected. No purpose would therefore be  served by emasculating the salutary provisions of section 14 of

the Family Courts Act by citing breach of privacy. Looking at it

dispassionately, even assuming evidence is collected in breach of privacy, at best and at worst, it is the process of collection of evidence that would be tainted not the evidence itself.

 IN THE HIGH COURT OF DELHI AT NEW DELHI

 Dated : 30th June, 2020

 CM(M) 40/2019 and CM APPL.No.1226/2019

DEEPTI KAPUR Vs  KUNAL JULKA 

CORAM:

HON'BLE MR. JUSTICE ANUP JAIRAM BHAMBHANI

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Whether court can direct accused to submit questionnaire in POCSO case in advance?

 It is clear that the purport of the Act is to insulate the child against an offensive or aggressive cross examination. Evidently, the court has also a duty to ensure that the accused is entitled for a fair trial by putting all relevant questions to the witnesses. Though the limited scope of section 33(2) is to insulate the victim against aggressive and offence cross examination, the court has to ensure that the relevant questions which may be embarrassing to the witness are properly and decently conveyed to the witness. In case of such questioning, the court has a solemn duty to ensure that, the question is appropriately moulded, without leaving out the spirit and soul of the question suggested.

8. Essentially, cross examination is considered to be the most difficult branch of multifarious duties of an advocate. It is a skill that requires greatest ingenuity, a habit of logical thought, clearness of perception, infinite patience and self control, power to read men's minds intuitively, to judge the witnesses by their face and the ability to cross examine with force and precision. A Lawyer has to deal with a prodigious variety of witnesses testifying under different circumstances. A skilled lawyer should know the precise moment at which a particular question is to be put and the questions which are not to be put. In a regular cross examination, questions are often to be moulded and asked on the spur of moment, depending on the answers given by the witness. Considering it, submitting the questionnaire in advance to the court, that too, with copy to the prosecutor will defeat the very purpose of cross examination and cross examination tends to become an empty formality. If the questions proposed to be put to the witness are supplied in advance, there is no purpose in conducting cross examination.

9. A perusal of the statutory provision also clearly shows that, it does not, either explicitly or by necessary implication, empower the court to demand a questionnaire from either side in advance before the examination of the witness. Section provides that "while recording" the examination-in-chief, cross examination or re-examination, the questions shall be communicated to the court, which in turn, shall be put to the child. It clearly shows that, statute does not authorise the court to require any party to supply questionnaire in advance. It negates the right of the accused for a fair trial.

IN THE HIGH COURT OF KERALA AT ERNAKULAM

Crl. M.C. No. 6092 of 2018

Decided On: 31.10.2018

 Unnikrishnan R. Vs. Sub Inspector of Police, Kurathikadu Police Station 

Hon'ble Judges/Coram:

Sunil Thomas, J.

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Supreme Court: Distinction between speedy trial and fair trial

 A “speedy trial”, albeit the essence of the fundamental
right to life entrenched in the Article 21 of the Constitution of
India has a companion in concept in “fair trial”, both being in
alienable constituents of an adjudicative process, to culminate
in a judicial decision by a court of law as the final arbiter.
There is indeed a qualitative difference between right to speedy
trial and fair trial so much so that denial of the former by
itself would not be prejudicial to the accused, when pitted
against the imperative of fair trial. As fundamentally, justice
not only has to be done but also must appear to have been
done, the residuary jurisdiction of a court to direct further
investigation or reinvestigation by any impartial agency, probe
by the state police notwithstanding, has to be essentially
invoked if the statutory agency already in-charge of the
investigation appears to have been ineffective or is presumed
or inferred to be not being able to discharge its functions
fairly, meaningfully and fructuously. 
REPORTABLE
 IN THE SUPREME COURT OF INDIA
 CRIMINAL APPELLATE JURISDICTION
 CRIMINAL APPEAL NO. 77 OF 2016

POOJA PAL V UNION OF INDIA AND ORS. 

Dated:JANUARY 22, 2016.

AMITAVA ROY,J.

Citation:2016 CRLJ 2038

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When accused can seek acquittal on ground of incorrect framing of charge on the ground of prejudice?

 When we speak of prejudice to an accused, it has to be shown that the accused has suffered some disability or detriment in the protections available to him under the Indian criminal jurisprudence. It is also a settled canon of criminal law that this has occasioned the accused with failure of justice. One of the other cardinal principles of criminal justice administration is that the courts should make a close examination to ascertain whether there was really a failure of justice or whether it is only a camouflage, as this expression is perhaps too pliable. With the development of law, Indian courts have accepted the following protections to and rights of the accused during investigation and trial :

(a) The accused has the freedom to maintain silence during investigation as well as before the Court. The accused may choose to maintain silence or make  complete denial even when his statement under Section 313 of the Code of Criminal Procedure is being recorded, of course, the Court would be entitled to draw inference, including adverse inference, as may be permissible to it in accordance with law;

(b)     Right to fair trial

(c)     Presumption of innocence (not guilty)

(d)     Prosecution   must   prove  its   case 

  beyond   reasonable  doubt.

21. Prejudice to an accused or failure of justice, thus, has to be examined with reference to these aspects. That alone, probably, is the method to determine with some element of certainty and discernment whether there has been actual failure of justice. `Prejudice' is incapable of being interpreted in its generic sense and applied to criminal jurisprudence.

The plea of prejudice has to be in relation to investigation or trial and not matters falling beyond their scope. Once the accused is able to show that there is serious prejudice to either of these aspects and that the same has defeated the  rights available to him under the criminal jurisprudence, then the accused can seek benefit under the orders of the Court.

Supreme Court of India

Rafiq Ahmed @ Rafi vs State Of U.P on 4 August, 2011

Bench: B.S. Chauhan, Swatanter Kumar

 REPORTABLE

Citation;(2011)8 SCC300,2011 CRLJ4399

Read full judgment here; click here

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