Court should not assume the role of prosecution or defence lawyer and put the questions to the witnesses to jeopardise the prosecution case or the defence of the accused

In the Supreme Court's case relied upon by both the Advocates it has been held as under :--

"The adversary system of trial being what it is there is an unfortunate tendency for a Judge presiding over a trial to assume the role of a referee or an umpire and to all the trial to develop into a contest between the prosecution and the defence with the inevitable distortions flowing from combative and competitive elements entering the trial procedure. If a Criminal Court is to be an effective instrument in dispensing justice, the Presiding Judge must cease to be a spectator and a mere recording machine. He must become a participant in the trial by evincing intelligent active interest by putting questions to witnesses in order to ascertain the truth. But this he must do, without unduly trespassing upon the functions of the public prosecutor and the defence Counsel, without any hint of partisanship and without appearing to frighten or bully witnesses. Any questions put by the Judge must be so as not to frighten, coerce, confuse or intimidate the witnesses."

"We may go further than Lord Denning and say that it is the duty of a Judge to discover the truth and for that purpose he may "ask any question, in any form, at any time, of any witness, or of the parties, about any fact, relevant or irrelevant" (section 165, Evidence Act). But this he must do, without unduly trespassing upon the functions of the public prosecutor and the defence Counsel, without any hint of partisanship and without appearing to frighten or bully witnesses. He must take the prosecution and the defence with him. The Court, the prosecution and the defence must work as a team whose goal is justice, a team whose caption is the Judge. The Judge, like the conductor of a choir, must, by force of personality, induce his team to work in harmony: subdue the raucous, encourage the timid, conspire with the young, fatter the old."

"The questions put by the learned Sessions Judge, particularly the threats held out to the witnesses that if they changed their statements they would involve themselves in prosecutions for perjury were certainly intimidating, coming as they did from the presiding Judge. The learned Sessions Judge appeared to have become irate that the witnesses were not sticking to the statements made by them under sections 161 and 164 and were probably giving false evidence before him.In an effort to compel them to speak what he thought must be the truth, the learned Sessions Judge, very wrongly, in our opinion firmly rebuked them and virtually threatened them with prosecutions for perjury. He left his seat and entered the ring, we may say. The principle of fair trial was abandoned. We find it impossible to justify the attitude adopted by the Sessions Judge and we also find it impossible to accept any portion of the evidence of P.Ws. 8 and 9, the two alleged eye witnesses."

It is clear that even though the Court is not supposed to assume the role of a referee or an umpire and to allow the trial to develop into a contest between the prosecution and the defence, and even though the Court is not supposed to be silent spectator to the examination-in-chief or cross examination,

the court should not assume the role of prosecution or defence lawyer and put the questions to the witnesses to jeopardise the prosecution case or the defence of the accused.[Para No.8]

    It is true that u/s 165 of the Evidence Act ample powers have been given to the Court to have effective and proper control over the trial and Court can ask any question, in any form, at any time. This is an absolute power given to the Court. However, the power has to be used sparingly and only when the circumstances justify its use.

Trial Judge has to seek explanation from the advocate orally while deciding the relevancy of question asked in cross examination rather than entirely putting the shutter down while disallowing of the questions

Decision of this Court in Yeshpal Jashbhai Parikh v/s. Rasiklal Umedchand Parikh, reported in 1954 SCC OnLine Bom 145 : (1955) 57 Bom LR 282, is also relevant on the point involved in the petition. Note of certain earlier decisions right from Privy Council were taken. In Vassiliades v/s. Vassiliades, reported in [1945] AIR PC 38 it was observed that ;

"No doubt cross-examination is one of the most important processes for the elucidation of the facts of a case and all reasonable latitude should be allowed, but the Judge has always a discretion as to how far it may go or how long it may continue. A fair and reasonable exercise of his discretion by the Judge will not generally be questioned".[Para No.14]

    In Yeshpal's case (Supra) it has been observed that, "While Courts will not ordinarily interfer with the proper exercise of the right of cross-examination the Courts have the power and authority to control the cross-examination of a witness".

    This Court is not agreeing with the submission by learned Advocate for petitioners that, the Court cannot control the cross-examination or he has free hand at the time of cross-examining the witness of the prosecution; but then agree to the submission that the cross- examination need not be restricted to what the witness has stated in his examination-in-chief. A balance has to be struck here while issuing directions to the learned Additional Sessions Judge that he has to decide the relevancy of the question which he may 

get explained from the learned advocate for the accused orally and then allow him to put the said question to the witness. On any count learned Additional Sessions Judge will not be justified in entirely putting the shutter down while disallowing of the questions and asking the defence advocate to restrict himself while cross- examining P.W.18 to the post mortem examination report Exhibit 216, sketch Exhibit 217 and certificate Exhibit 218. It is, therefore, again clarified that neither the learned advocate for the accused has unfettered right to put any question to the witness in the cross- examination but at the same time the learned Additional Sessions Judge shall also not restrict him in putting questions in the cross to the above referred documents only. There might be certain questions which would be beyond those documents and as an expert they are required to be elucidated from him. No straight jacket formula can be laid down as to what should be permitted and what should not be permitted as it depend upon the question that would be put and the relevancy and admissibility of the same and / or of the admissibility will have to be decided at that time. Definitely the learned Additional Sessions Judge is guided by the procedure laid down in Bipin Panchal's case (Supra), and it is specifically laid down that, it may be advantages for the Appellate Court in future. He has to bear those advantages which have been laid down in para No.15 of the case, in mind while recording the evidence.[Para No.15]

Judgment in cross/counter cases must be pronounced by the same judge one after the other in the same day

In Nathi Lal vs State of UP reported in 1990 Supp SCC 145, the Apex Court has succinctly held that the case and counter case should be tried by the same judge one after the other and both the judgments must be pronounced by the same Judge one after the other. Observation of the Apex Court in this regard is as under:

"2. We think that the fair procedure to adopt in a matter like the present where there are cross cases, is to direct that the same learned Judge must try both the cross cases one after the other. After the recording of evidence in one case is completed, he must hear the arguments but he must reserve the judgment. Thereafter he must proceed to hear the cross case and after recording all the evidence he must hear the arguments but reserve the judgment in that case. The same learned Judge must thereafter dispose of the matters by two separate judgments. In deciding each of the cases, he can rely only on the evidence recorded in that particular case. The evidence recorded in the cross case cannot be looked into. Nor can the judge be influenced by whatever is argued in the cross case. Each case must be decided on the basis of the evidence which has been placed on record in that particular case without being influenced in any manner by the evidence or arguments urged in the cross case. But both the judgments must be pronounced by the same learned Judge one after the other"[Para No.9]

    The same law was reiterated by the Apex Court in Sudhir and Ors. vs. State of MP reported in (2001) 2 SCC 688 in which the Apex Court held as under:

"8. It is a salutary practice, when two criminal cases relate to the same incident, they are tried and disposed of by the same court by pronouncing judgments on the same day. Such two different versions of the same incident resulting in two criminal cases are compendiously called "case and counter case" by some High Courts and "cross cases" by some other High Courts. Way back in nineteen hundred and twenties a Division Bench of Madras High Court (Waller, and Cornish, JJ) made a suggestion (In Re Goriparthi Krishtamma - 1929 Madras Weekly Notes 881) that "a case and counter case arising out of the same affair should always, if practicable,

be tried by the same court, and each party would represent themselves as having been the innocent victims of the aggression of the other."[Para No.10]

    In the said judgment the Apex Court further held as under:

"12. How to implement the said scheme in a situation where one of the two cases (relating to the same incident) is charge-sheeted or complained of, involves offences or offence exclusively triable by a Court of Sessions, but none of the offences involved in the other case is exclusively triable by the Sessions Court. The Magistrate before whom the former case reaches has no escape from committing the case to the Sessions Court as provided in Section 209 of the Code. Once the said case is committed to the Sessions Court, thereafter it is governed by the provisions subsumed in Chapter XVIII of the Code. Though, the next case cannot be committed in accordance with Section 209 of the Code, the Magistrate has, nevertheless, power to commit the case to the Court of Sessions, albeit none of the offences involved therein is exclusively triable by the Sessions Court. Section 323 is incorporated in the Code to meet similar cases also. That section reads thus:

"323.If, in any inquiry into an offence or a trial before a Magistrate, it appears to him at any stage of the proceedings before signing judgment that the case is one which ought to be tried by the Court of Session, he shall commit it to that Court under the provisions hereinbefore contained and thereupon the provisions of chapter XVIII shall apply to the commitment so made."

In investigation police should consider the defence put forth by the accused which if investigated fairly, may exonerate him

In Ankush Maruti Shinde The Supreme Court expressed its displeasure against the police for the manner in which it had investigated an offence in which several people were murdered and a woman raped in which, the accused persons, who were members of a nomadic tribe were falsely implicated while, the actual perpetrators of the crime who were identified by the witness's from the register at the police station, where never proceeded or investigated into. Underscoring the importance of a fair investigation, The Supreme Court held "It has to be uppermost kept in mind that impartial and truthful investigation is imperative. It is judiciously acknowledged that fair trial includes fair investigation as envisaged by Articles 20 and 21 of the Constitution of India. The role of the police is to be one for protection of life, liberty and property of citizens, that investigation of offences being one of its foremost duties. That the aim of investigation is ultimately to search for truth and to bring the offender to book". In the same judgment, The Supreme Court, relying upon an earlier judgment passed in V.K. Sasikala Vs. State - (2012) 9 SCC 771, Highlighted the importance of the police in examining the documents that maybe in support of the accused and held in the following words "As observed by this Court in V.K. Sasikala v. State [V.K. Sasikala v. State, (2012) 9 SCC 771 : (2013) 1 SCC (Cri) 1010] , though it is only such reports which support the prosecution case that are required to be forwarded to the Court under Section 173(5), in every situation where some of the seized papers and the documents do not support the prosecution case and, on the contrary, support the accused, a duty is cast on the investigating officer to evaluate the two sets of documents and materials collected and, if required, to exonerate the accused at that stage itself"[Para No.21]

    In Babubhai Vs. State of Gujarat, The Supreme Court examined a case arising from a fight between two groups in which three people died. The police are alleged to have examined the case only from the standpoint of one, completely ignoring the defence of the other. Emphasising on the importance of a fair investigation, the Supreme Court held "The investigation into a criminal offence must be free from objectionable features or infirmities which may legitimately lead to a grievance on the part of the accused that investigation was unfair and carried out with an ulterior motive. It is also the duty of the investigating officer to conduct the investigation avoiding any kind of mischief and harassment to any of the accused. The investigating officer should be fair and conscious so as to rule out any possibility of fabrication of evidence and his impartial conduct must dispel any suspicion as to its genuineness. The investigating officer "is not merely to bolster up a prosecution case with such evidence as may enable the court to record a conviction but to bring out the real unvarnished truth". (Vide R.P. Kapur v. State of Punjab [AIR 1960 SC 866 : 1960 Cri LJ 1239] , Jamuna Chaudhary v. State of Bihar [(1974) 3 SCC 774 : 1974 SCC (Cri) 250 : AIR 1974 SC 1822] , SCC at p. 780, para 11 and Mahmood v. State of U.P. [(1976) 1 SCC 542 : 1976 SCC (Cri) 72 : AIR 1976 SC 69] )". Further, in the same judgement Supreme Court held "Not only fair trial but fair investigation is also part of constitutional rights guaranteed under Articles 20 and 21 of the Constitution of India. Therefore, investigation must be fair, transparent and judicious as it is the minimum requirement of rule of law. The investigating agency cannot be permitted to conduct an investigation in a tainted and biased manner. Where non-interference of the court would ultimately result in failure of justice, the court must interfere. In such a situation, it may be in the interest of justice that independent agency chosen by the High Court makes a fresh investigation"[Para No.22]

    Thus, fair investigation by the police is an imperative facet inhering in Article 21. It is not an option but a constitutional mandate on the police that when it investigates, it must be done, not from the standpoint of the prosecution alone, but also from the point of view of the accused. It has to consider the defence put forth by the accused which if investigated fairly, may exonerate him. The purpose of investigation is not to secure a conviction of the accused but to unearth the truth relating to the commission of an offence. A partisan investigation is a defective investigation which puts a question mark on the sanctity of the proceedings against the accused. If after taking the defence of the accused into consideration the police is of the view that the accused is not the person who committed the offence, in such a situation he is to be exonerated and the case against him, closed. In the present case, the investigation was initially biased and one-sided. There was even reluctance on the part of the police to accept documents from the accused. Even after the police had received the prurient photographs of the deceased, it never carried out any investigation to examine the motive of the deceased to commit suicide and whether the reason put forth by the Petitioner was plausible. The police have merely taken the material given by the Petitioner and made the same a part of the chargesheet without conducting any investigation into the defence of the Petitioner. The police have merely recorded the statement of the immediate relations of the deceased and filed the chargesheet against the Petitioner. No investigation was conducted to a certain the veracity of the allegations against the Petitioner.[Para No.23]

There is no limitation of period for invoking High Court's inherent powers u/s.482 Cr.P.C.

If evidence is relevant, it is admissible irrespective of how it is obtained

The Investigating Agency has no power to appreciate the evidence

    Regarding limitation, although delay is duly explained in the petition, however, there is no applicability of Limitation Act on Section 482 Cr.P.C. being the inherent powers of this Court. The said section is starting itself with a non-obstante clause (Notwithstanding) therefore, this Court has power to exercise inherent powers where there is miscarriage of justice and abuse of process of law. Non-applicability of Limitation Act and non- providing of limitation period in Cr.P.C. with regard to Section 482 Cr.P.C., the intention of the legislature was not to restrict this Court to use these powers in appropriate cases. Thus, raising the issue of limitation period about Section 482 Cr.P.C. is itself contrary to the intention of legislature and the very section itself. In this regard, judgments relied upon by the respondent no.2 (complainant) are not applicable, as facts and circumstances of those cases are different from the case in hand.[Para No.49

    As far as the issue of source of document is concerned, the Hon'ble Supreme Court and various High Courts including the case of Pushpadevi M. Jatia vs. M.L. Wadhavan & Ors.: (1987) 3 SCC 367 relied upon by respondent no.2 (complainant) held that the source of the evidence is not material, as long as it is admissible under the law, the same may be considered. If evidence is relevant, it is admissible irrespective of how it is obtained.[Para No.50]

.......

Investigating Officer cannot withheld relevant evidence that would favour the accused and in such cases adverse inference can be drawn against prosecution

If it appears impossible to convict accused inspite of witnesses are presumed to be true without any cross examination, the accused deserves to be discharge

    The Hon'ble Supreme Court in the case of Manjeet Singh Khera Vs. State of Maharashtra: 2013 (9) SCC 276 held as under:

"........8. The Court also noticed that seizure of large number of documents in the course of investigation of a criminal case is a common feature. After completion of the process of investigation and before submission of the report to the Court under Section 173 Cr.P.C, a fair amount of application of mind on the part of the investigating agency is inbuilt in the process. These documents would fall in two categories: one, which supports the prosecution case and other which supports the accused. At this stage, duty is cast on the investigating officer to evaluate the two sets of documents and materials collected and, if required, to exonerate the accused at that stage itself. However, many times it so happens that the investigating officer ignores the part of seized documents which favour the accused and forwards to the Court only those documents which supports the prosecution. If such a situation is pointed out by the accused and those documents which were supporting the accused and have not been forwarded and are not on the record of the Court, whether the prosecution would have to supply those documents when the accused person demands them? The Court did not answer this question specifically stating that the said question did not arise in the said case. In that case, the documents were forwarded to the Court under Section 173(5) Cr.P.C. but were not relied upon by the prosecution and the accused wanted copies/inspection of those documents. This Court held that it was incumbent upon the trial court to supply the copies of these documents to the accused as that entitlement was a facet of just, fair and transparent investigation/trial and constituted an inalienable attribute of the process of a fair trial which Article 21 of the Constitution guarantees to every accused. We would like to reproduce the following portion of the said judgment discussing this aspect:

"21.The issue that has emerged before us is, therefore, somewhat larger than what has been projected by the State and what has been dealt with by the High Court. The question arising would no longer be one of compliance or non- compliance with the provisions of Section 207 Cr.P.C. and would travel beyond the confines of the strict language of the provisions of Cr.P.C. and touch upon the larger doctrine of a free and fair trial that has been painstakingly built up by the courts on a purposive interpretation of Article 21 of the Constitution. It is not the stage of making of the request; the efflux of time that has occurred or the prior conduct of the accused that is material. What is of significance is if in a given situation the accused comes to the court contending that some papers forwarded to the court by the investigating agency have not been exhibited by the prosecution as the same favours the accused the court must concede a right to the accused to have an access to the said documents, if so claimed. This, according to us, is the core issue in the case which must be answered affirmatively. In this regard, we would like to be specific in saying that we find it difficult to agree with the view taken by the High Court that the accused must be made to await the conclusion of the trial to test the plea of prejudice that he may have raised. Such a plea must be answered at the earliest and certainly before the conclusion of the trial, even though it may be raised by the accused belatedly. This is how the scales of justice in our criminal jurisprudence have to be balanced."[Para No.63]

Trial is not vitiated if investigation is conducted by the informant/police officer who himself is the complainant

Now we consider the relevant provisions of the Cr. P. C. with respect to the investigation.

    Section 154 Cr.P.C. provides that every information relating to the commission of a cognizable offence, if given orally to an officer in charge of a police station, shall be reduced to writing by him or under his direction.

    Section 156 Cr.P.C. provides that any officer in charge of a police station may investigate any cognizable offence without the order of a Magistrate. It further provides that no proceeding of a police officer in any such case shall at any stage be called in question on the ground that the case was one which such officer was not empowered under this section to investigate. Therefore, as such, a duty is cast on an officer in charge of a police station to reduce the information in writing relating to commission of a cognizable offence and thereafter to investigate the same.

    Section 157 Cr.P.C. specifically provides that if, from information received or otherwise, an officer in charge of a police station has reason to suspect the commission of an offence which he is empowered under Section 156 to investigate, he shall forthwith send a report of the same to a Magistrate empowered to take cognizance of such offence upon a police report and shall proceed in person to the spot to investigate the facts and circumstances of the case and, if necessary, to take measures for the discovery and arrest of the offender.

    Therefore, considering Section 157 Cr.P.C., either on receiving the information or otherwise (may be from other sources like secret information, from the hospital, or telephonic message), it is an obligation cast upon such police officer, in charge of a police station, to take cognizance of the information and to reduce into writing by himself and thereafter to investigate the facts and circumstances of the case, and, if necessary, to take measures for the discovery and arrest of the offender. Take an example, if an officer in charge of a police station passes on a road and he finds a dead body and/or a person being beaten who ultimately died and there is no body to give a formal complaint in writing, in such a situation, and when the said officer in charge of a police station has reason to suspect the commission of an offence, he has to reduce the same in writing in the form of an information/complaint. In such a situation, he is not precluded from further investigating the case. He is not debarred to conduct the investigation in such a situation. It may also happen that an officer in charge of a police station is in the police station and he receives a telephonic message, may be from a hospital, and there is no body to give a formal complaint in writing, such a police officer is required to reduce the same in writing which subsequently may be converted into an FIR/complaint and thereafter he will rush to the spot and further investigate the matter. There may be so many circumstances like such. That is why, Sections 154, 156 and 157 Cr.P.C. come into play.[Para No.9]

If a litigant does not come to the Court with clean hands, he is neither entitled to be heard nor entitled to any relief from any judicial forum

The Supreme Court in the case of 'Bhaskar Laxman Jadhav and others vs. Karamveer Kakasaheb Wagh Education Society and others', reported as (2013) 11 Supreme Court Cases 531 held that it is the duty of the litigant to disclose all material facts and a litigant cannot decide which facts are material and which are not. He must come to court with clean hands and disclose all material facts relating to his case. The Supreme court further held as under:-

"Suppression of fact
42. While dealing with the conduct of the parties, we may also notice the submission of the learned counsel for Respondent 1 to the effect that the petitioners are guilty of suppression of a material fact from this Court, namely, the rejection on 2-5-2003 of the first application for extension of time filed by the trustees and the finality attached to it. These facts have not been clearly disclosed to this Court by the petitioners. It was submitted that in view of the suppression, special leave to appeal should not be granted to the petitioners. 

43. Learned counsel for the petitioners submitted that no material facts have been withheld from this Court. It was submitted that while the order dated 2-5-2003 was undoubtedly not filed, its existence was not material in view of subsequent developments that had taken place. We cannot agree. 

44. It is not for a litigant to decide what fact is material for adjudicating a case and what is not material. It is the obligation of a litigant to disclose all the facts of a case and leave the decision-making to the court. True, there is a mention of the order dated 2-5-2003 in the order dated 24-7-2006 passed by the JCC, but that is not enough disclosure. The petitioners have not clearly disclosed the facts and circumstances in which the order dated 2-5-2003 was passed or that it has attained finality. 

45. We may only refer to two cases on this subject. In Hari Narain v. Badri Das, AIR 1963 SC 1558 stress was laid on litigants eschewing inaccurate, untrue or misleading statements, otherwise leave granted to an appellant may be revoked. It was observed as follows: (AIR p.1560, para 9) "9. .......It is of utmost importance that in making material statements and setting forth grounds in applications for special leave care must be taken not to make any statements which are inaccurate, untrue or misleading. In dealing with applications for special leave, the Court naturally takes statements of fact and grounds of fact contained in the petitions at their face value and it would be unfair to betray the confidence of the Court by making statements which are untrue and misleading. That is why we have come to the conclusion that in the present case, special leave granted to the appellant ought to be revoked. Accordingly, special leave is revoked and the appeal is dismissed. The appellant will pay the costs of the respondent." 

46. More recently, in Ramjas Foundation v. Union of India, (2010) 14 SCC 38 the case law on the subject was discussed. It was held that if a litigant does not come to the Court with clean hands, he is not entitled to be heard and indeed, such a person is not entitled to any relief from any judicial forum. It was said: (SCC p.51, para 21) "21. The principle that a person who does not come to the court with clean hands is not entitled to be heard on the merits of his grievance and, in any case, such person is not entitled to any relief is applicable not only to the petitions filed under Articles 32, 226 and 136 of the Constitution but also to the cases instituted in others courts and judicial forums. The object underlying the principle is that every court is not only entitled but is duty-bound to protect itself from unscrupulous litigants who do not have any respect for truth and who try to pollute the stream of justice by resorting to falsehood or by making misstatement or by suppressing facts which have a bearing on adjudication of the issue(s) arising in the case."

Police authorities are not the adjudicators of guilt or innocence of any person

A person cannot be denuded of his or her dignity merely because he/she is an accused or is under trial.

A media campaign to pronounce a person guilty would certainly destroy the presumption of innocence.

    It is also necessary to bear in mind that human dignity is recognized as a constitutional value and a right to maintain one's reputation is a facet of human dignity. A person cannot be denuded of his or her dignity merely because he/she is an accused or is under trial.
[Para No.24]

   The police or any other agency cannot use media to influence public opinion to accept that the accused is guilty of an alleged offence while the matter is still being investigated. The same is not only likely to subvert the fairness of the investigation but would also have the propensity to destroy or weaken the presumption of innocence, which must be maintained in favour of the accused till he/she is found guilty after a fair trial.
[Para No45.]

   It is also well settled that the right to receive information is one of the essential the facets of Article 19(1)(a) of the Constitution of India. The right to freedom of speech and expression also encompasses the right to information. However, this right is not absolute and may be curtailed if it interferes with the administration of justice and the right of an accused to a fair trial.[Para No.46]

Prison is primarily for punishing convicts ; not for detaining undertrials in order to send any 'message' to society

While in the additional status report the State says that 

“.... Granting of bail at this early stage may send an adverse message in the society and such crimes should not
be allowed to happen in the national capital. ....”. 

(Emphasis supplied) 

this court is of the view that that cannot be basis for denying bail, if the court is otherwise convinced that no purpose in aid of investigation and prosecution will be served by keeping the accused in judicial custody. Prison is primarily for punishing convicts ; not for detaining undertrials in order to send any ‘message’ to society. The remit of the court is to dispense justice in accordance with law, not to send messages to society. It is this sentiment, whereby the State demands that undertrials be kept in prison inordinately without any purpose, that leads to overcrowding of jails ; and leaves undertrials with the inevitable impression that they are being punished even before trial and therefore being treated unfairly by the system. If at the end of a protracted trial,  the prosecution is unable to bring home guilt, the State cannot give back to the accused the years of valuable life lost in prison. On the other hand, an accused would of course be made to undergo his sentence after it has been awarded, after trial. [Para No.16]

In matrimonial dispute, secret recording is admissible in evidence if found to be relevant

Electronic Evidence obtained illegally - Petition for divorce u/s. 13(1)(ia) of The Hindu Marriage Act - CCTV footage recorded without knowledge of wife - In recording wife was found to be talking on phone with her lady friend in a manner derogatory and defamatory to the husband - Husband produced CD of this recording as the evidence in divorce proceeding - Wife in her written statements opposed that CD to be tampered with and inadmissible as it is procured in breach of her right of privacy - After this objection husband made an application to family court to get the genuineness of CD examined from Forensic Lab - Family allowed that application and the same challenged by wife before High Court

Can CCTV audio-video secretly recorded by a spouse be permitted to be used against other spouse in a matrimonial dispute?

Held: In matrimonial dispute, secret recording is admissible in evidence if found to be relevant to the facts-in-issue; and the other party can initiate legal action action the party for adopting illegal means; but such action would not render the illegally obtained evidence inadmissible if it is otherwise relevant for the  purpose of deciding the matrimonial dispute between the parties.

   The sequitur to the aforesaid constitutional and legal landscape is that :

(a) The settled rule, purely from the standpoint of the law of evidence, is that evidence is admissible so long as it is relevant, regardless of how it is collected. Digressing from this settled position would have wide ramifications and consequences; and would be a serious hindrance to judicial proceedings across the board, in several foreseeable and unforeseeable ways. On the other hand, the possible misuse of this rule of evidence, particularly in the context of the right to privacy, can be addressed by prudent exercise of judicial discretion by a court not at the time of receiving evidence but at the time of using evidence at the stage of adjudication ;

Objection to admissibility of electronic evidence without compliance of sec.65B can be raised in appeal even if not raised in the trial

Whats is the difference between objection to admissibility of document and objection to mode of proof?

What are its consequences?

If electronic evidence is admitted and exhibited in evidence then its admissibility can be raised in appeal even if it is not objected in the trial.

Examination of investigating officer; before injured or eye witness is examined, does not cause prejudice to accused in his defence

Fair trial - order of examination of witnesses by prosecution - Sec.135 of Evidence Act - Sec.230, 231, 311 of CrPC

   Does examination of investigating officer before injured or eye witness is examined, cause prejudice to accused in his defence?

Held: No

Fair trial : What is the responsibility of prosecution?

It is settled legal position that it is for the prosecution to put forward entire evidence before the court whether the same supports the prosecution or not, so that the true position comes before the court. It is the duty of the prosecution to act fairly.[Para No.18]