Describe the Philosophy of the Examination of Accused under the criminal law.

Introduction:

Criminal law is an area of law that deals with harmful conduct that needs to be punished, either because it is dangerous, or because it is judged to be unacceptable in our society. This is a set of rules to protect the public and preserve shared values. On the other hand the civil Law is the law that applies to relations between people (family, property, inheritances, etc.). In the civil cases there are provisions of filing written statement or written objection, from which the cases and allegations of the defendants are disclosed. But in the criminal justice system there is no such provision. In the criminal trial the case of the accused is disclosed from the cross examination of the Prosecution witnesses by the lawyer of the accused and mainly from the statement or explanation given by the accused himself at the time of examining him under section 342 of the Code of Criminal Procedure[1].

 Philosophy of the examination of accused:

The provision of examining the accused, in fact based on the principle involved in the fundamental maxim “audi alteram portem“ i.e. “none should be condemned unheard”. The statement given by the accused during examination enables the accused being heard by the trial court. The accused is the person suspected of committing a crime.

 The Accused:

The accused is assumed to be innocent until proved guilty. In other words, the accused is innocent until the Crown prosecutor proves beyond a reasonable doubt that the accused committed the crime. So the examination of the accused under the aforesaid section is very significant and most important part of the trial of a criminal case.

The Witness:

A witness knows about certain facts regarding the crime. The lawyers for the two sides of the case can ask him to come to court to explain what he knows, what he saw and what he heard.

Examination-in-chief

When a witness is called to give evidence, she/he will be questioned first by the advocate representing the party calling them. This is the ‘examination-in-chief’, the object of which is to elicit from the witness all the facts supporting that party’s case that are within the personal knowledge of that witness.

            When giving evidence, witnesses may refresh their memory from documents provided certain conditions are met – see the section on Memory Refreshing in ‘Exceptions to the hearsay rule’.

            ‘Leading questions’ (i.e. questions which invite a witness to give a particular response) should generally not be asked in examination-in-chief. There are a limited number of exceptions to this rule, such as questions on introductory matters or facts that are not in dispute and the court may allow leading questions where it considers it in the interests of justice to do so.

            All the evidence on which the prosecution wishes to rely must be called before the close of the prosecution case, as it will only be in exceptional circumstances that the prosecution may be allowed subsequently to call evidence. This should be borne in mind when you attend the trial: if you consider that there may have been an oversight, and that evidence intended to go before the court has not been introduced, you must inform the prosecuting advocate before, and not after, the close of the prosecution case.

Cross Examination by an Accused:

When a prosecution witness is called and sworn they will give their evidence to the Court in the first instance and be questioned by the prosecutor. This is called examination-in-chief. When the witness has completed their examination-in-chief you have the right and opportunity to ask them questions. If there are no questions in cross-examination, the witness’s account is generally taken as unchallenged, and accepted. This is called cross-examination.

            Prosecution witnesses are usually called to give their evidence before you will be called to give your evidence. This means that if you are going to say something in your evidence later that is different to, or is missing from, what a prosecution witness says and you think they may have knowledge about it then you must question them in cross-examination. It means that the Court has the best opportunity to hear both sides of all matters in dispute.[2]

Admission of an accused:

Admissions are not applicable to criminal trial. Only confession that too with limitations of 163 cr.P.C, 27 EA etc is admissible. In 313 only incriminating facts, circumstances and evidence needs to be asked.

Prosecution has to prove its case first. Then the questioning of accused U/s 313. Prosecution is unable to know the stand of the accused whether he will admit the document in 313 or not. So they prove their case first with their evidence. After 313 there is defense evidence if any. There after argument and then judgment.

The reason why examination of accused is mandatory and obligatory:

From the language of section 342 Cr.PC, it can be presumed that the provision of the first part of sub-section (1) is discretionary and that of the second part is mandatory. But our Apex Courts by judicial pronouncements made the provision mandatory and obligatory. The High Court Division of the Bangladesh Supreme Court held that the provision of section 342 of the Cr.PC being a mandatory provision of procedural law, the departure from the fundamental principles of the said section causesgrave prejudice to the accused.[3] In the case of Nurul Alam Chowdhury -vs.- the State reported in 51 DLR (HCD) -125 and 7 BLT (HCD) -50, the High Court Division made the above provision obligatory. Hence, it is clear that the examination of the accused under 342 Cr.P.C is the valuable legal right of the accused which is mandatory and obligatory duty of the court and it cannot be dispensed with. The act of such examination is the solemn act of the trial court and it should not be treated as an idle formality or mere routine work.[4]

            The main object of examination under section 342 Cr.P.C. is to enable the accused to explain the incriminating circumstances appearing in the evidences against him. . The whole object of section 342 Cr.PC is to afford the accused a fair and proper opportunity to offer/set up his defense in order to establish his innocence.[5]

Who can be examined?

Only the accused of the case against whom the evidences are recorded is to be examined. Where there are several accused, the case of each of them should be individually considered and each of them should be examined with reference to the particular position brought out by evidence against him. The recording of joint statements of several accused is also not permissible.[6]

Who is eligible to examine an accused person?

None else, but the court alone is empowered and authorized to examine the accused.[7] Here court means the Judge or Tribunal or Magistrate trying the concerned case. The Public Prosecutor or the lawyer of prosecution as well as the defense lawyer or any staff of the court has no locus standi in this respect and they cannot take part in such examination, because the matter of such examination is exclusively between the court and the accused. High Court Division observed that it is the obligatory duty of the court to examine the accused. Any staff of the court or any other person, whoever may be, cannot examine the accused under section 342 Cr.P.C.[8]

 When an accused person is eligible for examination:

The stage when the accused can be examined under section 342 Cr.P.C comes in logical sequence before the decision whether a prima facie case is made out from the evidences adduced against him or not. So, the examination of the accused under the above section generally must be made after closure of the prosecution witnesses and before the accused is called on to enter upon his defense.

According to the provision of the first part of the section though the accused may be examined at any stage of the proceeding, but such examination is not sufficient compliance with the section. Question under this section may be put to the accused at any stage of inquiry or trial offering an opportunity to explain any matter affecting him. But after examination of all prosecution witnesses and before the accused enters into his defense the court shall examine him again for the said purpose.[9]

After the examination of the accused, evidence of some more prosecution witnesses or court witnesses are recorded or any prosecution witness who was examined earlier is recalled and re-examined or any material evidence is produced then the accused should be examined again in respect of incriminating evidence of such witnesses.[10]

So , it may be said that the accused can be examined under section 342 Cr. PC by the trial court more than once at any stage and complete examination must be made after closure of entire prosecution is completed

Principals or Guideline for examination of the accused:

Although there is no model regarding the framing of questions by the trial court but some guidelines and principles have been well settled through the pronouncement of decisions regarding the examination of an accused under section 342 of the Code of Criminal Procedure. Followings are some of them-

(1)     Proper warning to the accused in accordance with law should be given before the examination.

(2)     The Court must be satisfied that whether the accused is in a position to understand the questions and its sequence.

(3)     The questions must not be in the nature of cross-examination to fill up the lacuna of the prosecution case. The questions also should not be as such that the accused is bound to admit the offence.

(4)     Irrelevant questions which may confuse the accused should not be asked.

(5)     Questions should be put in such a manner that it can be answered properly.

(6)     Such questions should not be asked in which the accused is liable to be prejudiced.

(7)     Rolled up questions containing several circumstances in lengthy form cannot be asked.

(8)     Circumstances appearing from evidence against the accused should be put in simple way for his explanation.

(9)     No oath shall be administered to the accused when he is examined.

 Steps of examination under section 342 Cr.PC:

1. The examination of an accused under section 342 of the Code of Criminal Procedure is actually a direct dialogue between the trying Judge or Magistrate and the accused about the evidence produced against him. So, during such examination each piece of the evidence and each circumstance having as incriminating effect against the accused in relation to the case ought to be put to accused in the form of question and the answer or explanation given by the accused so far possible in his (accused’s) language, must be recorded by the own hand of the trying Judge or Magistrate.[11]
2. When a point arises in the evidence against the accused which the court consider vital, it is the duty of the trial court to draw the attention of the accused to the point and to ask for an explanation.[12]
3. Questions to be put to accused should be definite and specific. Lengthy and confusing question must be avoided. Some of the courts start the question right from the first witness and end up with last witness. This type of questioning, putting forward the evident in a haphazard manner, is likely to confuse the accused many a time and therefore, it is necessary that question should be in the chronological order of event. But if a single circumstance has been spoken to by a number of witnesses, it is not necessary to frame question in respect of that circumstance as many times as the number of witnesses who have spoken with reference to the same, that circumstance could be formed in one single question.[13]
4. It is also improper to put entire evidence on record to the accused. The duty of the trial court is only to refer the circumstances of incriminating nature upon which the prosecution relies and the incriminating point, if any, which appears from the evidence on record. So, entire statements of the witnesses are not to be put to the accused in his examination under Section 342 of the Code of Criminal Procedure. But the material evidence against the accused is to be put in details.
5. An accused should be properly examined and, if a point in evidence is considered important against the accused and conviction is included being based upon it, then it is right and proper that the accused should  be questioned about the point and be given an opportunity of explaining it, if he so desires. This is an important and solitary provision and should not be slurred over.
6. It is always proper and safer in the interests of better administration of Criminal Justice that each and every circumstance emerging from the record against the accused is to put him. The purpose of the examination requires that questions are put in a manner, style and form so as to be easily comprehensible to person in a position of the accused. It is also better if each question contains one point alone and not a combination of several circumstances in order to provide the accused a proper and adequate opportunity to explain the circumstances against him. It is more fair and just that the circumstances are properly put to the accused in the first place. That will not only help the accused, but also help the court in correctly appreciating on the basis of the said examination the truth or otherwise of one or the other story.[14]
7. It is mentionable here that our Apex Courts have emphasized the need of taking explanation while examining the accused under section 342 Cr.PC on putting his confessional statement, if any. The confessional statement of any accused must be stated to the accused during his examination under section 342 Cr.PC to enable him in defense to resist the case of prosecution. Failure to comply with the provision certainly prejudiced the accused.[15]
8. Also emphasizing the requirement of putting the Dying Declaration of the deceased, if any, and obtaining the explanation from the accused while he is examined under section 342 Cr.PC. Relying the decision made in the case reported in 28 DLR (AD) -35, opined that the Dying Declaration, if be treated as true, cannot yet form the basis of conviction, as it was not referred to the accused while examined under section 342 of the Code.[16]
9. The necessity of putting the medical evidences, documentary evidences, expert reports, any other paper which appears to be evidence, material evidence (including alamat) etc. to the accused at the time of his examination under section 342 Cr.PC and recording the explanation given by him is emphasized.[17]
10. During the examination, if the accused submitted any document or other materials in support of his defense or his innocence, the court should accept the same for consideration as a part of his statement.[18]
11. Recording of statements of the accused should be in full and not in monolithic answers, relevant details being indicated. Where the evidence against and accused consists of circumstantial evidence only, it is of the outmost importance that the various circumstances which clinch the issue against him should be put to him and an explanation be called from him. Inculpatory and exculpatory materials against the accused also are put to him for explanation. Irrelevant answer of the accused should not be recorded. An accused must be asked why the witnesses are deposing against him and further if he has anything else to offer by way of explanation.
12. Lastly the accused ought to be asked, during his examination under section 342 Cr.PC, whether he will produce any witness or adduce any evidence in his defense. If he answers in the negative, that will be enough for the purpose, but if he answers in the affirmative i.e. accused wants to adduce witnesses in support of his defense, the trial court is to record the answer and proceed accordingly.[19]

 Things which can be treated as evidence:

(1) Confessional statement of the accused or his accomplice recorded under section 164 of the Code, or Admission of guilt by plea, if any.

(2) Dying Declaration of the victim, if any.

(3) Expert’s Report or Chemical Examination Report or Opinion of any Expert, if any.

(4) Medical certificate or Injury Report or the report of Forensic Science Laboratory.

(5) Post Mortem Report or Report of Physician, if any.

(6) Inquest report.

(7) Material Exhibits (Alamat of the Occurrence) if any.

(8) Other documents produced by the prosecution or any signature or Thumb Impression given by the accused or finger print report.

(9) DNA Report, etc. which may be considered against the accused and ask his explanation regarding them separately and record his answer & explanation properly and adequately.

Evidentiary Value of the Statement of Accused:

The Statement (answers and explanations) given by the accused during his examination under section 342 Cr.P.C. is entirely for the benefit of accused and the accused only. The statement cannot be used by the Court against him nor is the prosecution permitted to use to fill up any gap or lacuna left in the prosecution evidence.[20]

The statement ought to be treated like any other evidence and the material in favor of the accused. The same should be given due weight and adequate emphasis while recording the guilt against the accused. The answers given by the accused may be taken into consideration, but the same generally cannot take the place of evidence that has to be adduced by the prosecution. Any stand taken by the accused in his statement cannot be used as evidence, unless its truth is otherwise established. When the circumstances stated by the accused become probable, the accused is entitled to get benefit of reasonable doubt. The statement of one accused cannot be used against co-accused.

 The confessional statement either inculpatroy or exculpatory, if not referred to the accused or the main aspect of the confessional statement of the accused was not brought to his notice during his examination, in ordinary course, it should not be used against him. Such a confessional statement should be kept out of consideration.[21]

The confessional statement not having been put to the accused in his examination though cannot be used for any purpose what so ever, but when a confessional statement  not mentioned during examination of accused found to be true and voluntary and corroborated by other evidence then it may be considered, even as the basis of the conviction.[22]

Conclusion:

In the conclusion it should be mentioned that the statement given by the accused during his examination under section 342 of the Code of Criminal Procedure, may not be sacrosanct but certainly it deserves proper consideration. So examination of accused is a very important process because it determines wither the allegation against the accused is right or not and to prove a person guilty or innocent depends upon the proper examination of that accused person.

 Bibliography:

1.      Violent Criminal Acts and Actors Revisited by Lonnie H. Athens.

1. Handbook of criminal law by William Lawrence Clark, William Ephraim Mikell
2. he Modern Law of Evidence by Adrian Keane
3. Body Search and Physical Examination of the Accused by Stefanie M. Bausch
4. http://bdlaws.minlaw.gov.bd/print_sections_all.php?id=24
5. http://bdlaws.minlaw.gov.bd/print_sections_all.php?id=75
6. www.slideshare.net/dentonhths/defences-for-the-accused
7. christiancriminallawottawa.com/…/104-cross-examination-of-witness…