Analysis of Section 296 CrPC

Evidence of Formal Character on Affidavit: An Analysis of Section 296 of the Code of Criminal Procedure, 1973

Introduction

The Code of Criminal Procedure, 1973 (CrPC), in its endeavor to ensure a fair and expeditious trial, incorporates several provisions aimed at streamlining court procedures. Among these is Section 296, which permits the evidence of any person whose testimony is of a formal character to be given by way of an affidavit. This provision seeks to obviate the need for personal appearance of witnesses for purely formal testimonies, thereby saving valuable judicial time and resources. However, the application of this section is circumscribed by safeguards to protect the rights of the accused, primarily the right to cross-examine the deponent. This article undertakes a comprehensive analysis of Section 296 CrPC, examining its statutory contours, judicial interpretations, interplay with analogous provisions, and its practical implications in the administration of criminal justice in India.

The Statutory Provision: Section 296 of the Code of Criminal Procedure, 1973

Section 296 CrPC is titled "Evidence of formal character on affidavit" and reads as follows:

"(1) The evidence of any person whose evidence is of a formal character may be given by affidavit and may, subject to all just exceptions, be read in evidence in any inquiry, trial or other proceeding under this Code.

(2) The Court may, if it thinks fit, and shall, on the application of the prosecution or the accused, summon and examine any such person as to the facts contained in his affidavit."

Sub-section (1) allows evidence of a "formal character" to be presented via affidavit, which can then be read into evidence. Sub-section (2) provides a crucial safeguard: the court has the discretion to summon the deponent for examination and is obligated to do so if either the prosecution or the accused makes an application to that effect. This ensures that the right to cross-examination, a cornerstone of fair trial, is preserved.

Judicial Interpretation and Application of Section 296 CrPC

Purpose and Object

The primary objective of Section 296 CrPC is to expedite criminal proceedings by avoiding unnecessary delays associated with summoning witnesses whose evidence is not contentious and is merely formal. As observed in cases discussing analogous provisions aimed at procedural celerity, such as Section 145 of the Negotiable Instruments Act, 1881, the legislative intent is to help the court save time and costs (Arun Kumar Mohata v. Manjushree Singhi, 2006 Cr.LJ (NOC) 492 (Cal); P. Janakumar v. G. Pandiyaraj, 2008 SCC ONLINE MAD 684). This aligns with the broader theme in CrPC of streamlining trials, as also seen in provisions like Section 294 CrPC, which deals with dispensing formal proof of certain documents if their genuineness is not disputed (Shaikh Farid Hussinsab v. State Of Maharashtra, 1981 SCC ONLINE BOM 26).

"Evidence of a Formal Character"

The linchpin of Section 296 CrPC is the phrase "evidence of a formal character." The Code does not explicitly define this term, leaving it to judicial interpretation based on the facts and circumstances of each case. Generally, it refers to evidence that does not go to the root of the matter or prove a contentious fact, but rather serves to complete the record or prove a fact that is not substantially in dispute. Examples could include the testimony of a clerk regarding the dispatch of a notice, a formal witness to a seizure memo whose contents are not disputed, or a government official confirming a routine official act. It is crucial that such evidence is not substantive or controversial, as the provision is not intended to replace the oral examination of key witnesses on material aspects of the case.

The Proviso: Right to Cross-Examine

Sub-section (2) of Section 296 CrPC is paramount for ensuring fairness. While the court has discretion to summon the deponent suo motu, it is mandatory ("shall") for the court to summon and examine such a person if an application is made by either the prosecution or the accused. This provision has been interpreted strictly to uphold the right to cross-examination.

The Supreme Court, while interpreting the analogous provision in Section 145(2) of the Negotiable Instruments Act, 1881, which bears striking similarity to Section 296(2) CrPC, has emphasized the mandatory nature of summoning the witness upon application. In Radhey Shyam Garg v. Naresh Kumar Gupta ((2009) 13 SCC 201), the Court observed that a person whose evidence has been taken by way of affidavit can be summoned for cross-examination. The Court clarified that the term "examine" in such contexts, particularly when an application is made by the opposing party, primarily implies cross-examination. This principle was reiterated in Mandvi Cooperative Bank Limited v. Nimesh B. Thakore ((2010) 3 SCC 83), where the Supreme Court, comparing Section 145(2) NI Act with Section 296(2) CrPC, stated:

"What Section 145(2) of the Act says is simply this. The court may, at its discretion, call a person giving his evidence on affidavit and examine him as to the facts contained therein. But if an application is made either by the prosecution or by the accused the court must call the person giving his evidence on affidavit, again to be examined as to the facts contained therein." (Mandvi Cooperative Bank Limited v. Nimesh B. Thakore, (2010) 3 SCC 83, para 33).

The Delhi High Court in Naveen Malhotra v. State (Govt Of Nct Of Delhi) & Anr. (2015 SCC OnLine Del 13780), relying on Radhey Shyam Garg, also underscored that the purpose of summoning a witness who has filed an affidavit would be for cross-examination. These interpretations fortify the safeguard embedded in Section 296(2) CrPC, ensuring that the convenience of an affidavit does not override the fundamental right of a party to challenge evidence.

Distinction from and Comparison with Other Provisions

  • Section 294 CrPC (No formal proof of certain documents): While both Section 294 and Section 296 CrPC aim to expedite trials, Section 294 deals with the admission of documents whose genuineness is not disputed, thereby dispensing with the need for formal proof of such documents. Section 296, on the other hand, deals with the mode of presenting evidence of a formal character through an affidavit. The Bombay High Court in Shaikh Farid Hussinsab v. State Of Maharashtra (1981 SCC ONLINE BOM 26) elaborated on the scope of Section 294 CrPC, highlighting its utility in streamlining proceedings, a spirit shared by Section 296 CrPC.

  • Section 145 Negotiable Instruments Act, 1881: This provision allows the complainant in a cheque dishonor case to give evidence on affidavit. Unlike Section 296 CrPC, which is limited to "evidence of a formal character," Section 145 NI Act permits substantive evidence, including the examination-in-chief of the complainant, to be led by affidavit (P. Janakumar v. G. Pandiyaraj, 2008 SCC ONLINE MAD 684; Shelatkar Construction Pvt. Ltd. & Anr. v. Creative Enterprises & Anr., 2007 SCC ONLINE BOM 1441). However, the proviso in Section 145(2) NI Act regarding summoning the deponent for examination upon application is, as discussed, analogous to Section 296(2) CrPC, making judicial pronouncements on one relevant to the other in terms of procedural safeguards.

  • Section 200 CrPC (Examination of complainant): An important limitation on the scope of Section 296 CrPC was highlighted by the Karnataka High Court in Sri K. Venkataramaiah And Others v. Sri Katterao (2007 SCC ONLINE KAR 608). The Court held that an affidavit under Section 296 CrPC cannot substitute the mandatory requirement of examining the complainant and witnesses on oath under Section 200 CrPC at the pre-cognizance stage. The Court reasoned that Section 200 CrPC requires the Magistrate to record the substance of the sworn statement, a process distinct from merely accepting an affidavit. It was opined that Section 296 CrPC applies to evidence tendered during an inquiry or trial, not to the initial examination of a complainant. This underscores that Section 296 CrPC is not a universal substitute for oral testimony but is confined to specific contexts.

  • Section 273 CrPC (Evidence to be taken in presence of accused): Section 273 CrPC mandates that evidence generally be taken in the presence of the accused. While Section 296 CrPC allows evidence by affidavit, the subsequent summoning under sub-section (2) for examination ensures compliance with the spirit of Section 273 CrPC. This is distinct from situations like those addressed in State Of Maharashtra v. Dr. Praful B. Desai ((2003) 4 SCC 601), which permitted evidence recording via video-conferencing, focusing on the *medium* of presence rather than the *form* of evidence (affidavit v. oral testimony) addressed by Section 296 CrPC.

  • Historical Context (Old Code): It is pertinent to note that Section 296 of the Code of Criminal Procedure, 1898 (Old Code), dealt with an entirely different subject matter, namely, the power of the Sessions Court or High Court to direct commitment of a case if an accused was improperly discharged (Empress Of India v. Bhup Singh And Anr., (1879) ILR 2 All 771). This historical provision should not be confused with the current Section 296 CrPC, 1973.

The Scope of "Formal Character" in Evidence

Determining what constitutes "evidence of a formal character" is a matter of judicial discretion, guided by the principle that it should not pertain to controversial facts or the core issues of the case. Typically, such evidence might include:

  • Proof of dispatch or receipt of official documents.
  • Testimony of a police officer regarding the formal aspects of an investigation, such as sending articles for forensic examination, provided the facts themselves are not in dispute.
  • Evidence from a formal witness to a search or seizure, if the fact of search/seizure and the items recovered are not contested.
  • Identification of signatures or handwriting by a person familiar with them, where such identification is purely formal and not a matter of expert opinion on a disputed document.

The crucial test is whether the evidence is such that its truthfulness is unlikely to be challenged, or if challenged, can be effectively addressed through cross-examination without unduly prolonging the trial. If the evidence is central to proving the guilt of the accused or involves complex facts requiring detailed oral testimony and scrutiny, it would fall outside the ambit of "formal character."

Procedural Aspects and Implications

For Section 296 CrPC to be invoked, the party wishing to tender evidence of a formal character must file an affidavit of the witness. This affidavit should clearly state the facts to which the deponent testifies. The court then considers whether the evidence is indeed of a formal character and whether, subject to all just exceptions, it can be read into evidence.

The implications of this provision are significant:

  • Efficiency: It saves judicial time by avoiding the need for witnesses to travel and wait for their turn to depose on non-contentious matters.
  • Cost Reduction: It reduces costs associated with witness summons and attendance.
  • Fair Trial Safeguard: The mandatory provision for summoning the deponent for cross-examination upon application ensures that the accused's (or prosecution's) right to challenge evidence is not compromised.
  • Potential for Misuse: There is a potential for misuse if parties attempt to introduce substantive or controversial evidence under the guise of "formal character." Vigilance by the court and the opposing party is necessary to prevent this.

Conclusion

Section 296 of the Code of Criminal Procedure, 1973, serves as a valuable procedural tool for enhancing the efficiency of criminal trials in India. By allowing evidence of a formal character to be tendered by affidavit, it streamlines the process without sacrificing the fundamental tenets of a fair trial. The judicial interpretations, particularly those drawing parallels with Section 145 of the Negotiable Instruments Act, 1881, have reinforced the mandatory nature of the right to cross-examine the deponent upon application, thereby balancing the objectives of speed and justice.

The careful application of this provision, with a clear understanding of what constitutes "evidence of a formal character" and strict adherence to the safeguards in sub-section (2), ensures that Section 296 CrPC contributes positively to the administration of criminal justice, making legal processes more agile while upholding the rights of all parties involved. The distinction drawn by courts, such as in the context of Section 200 CrPC, further delineates its appropriate sphere of operation, preventing its overextension into areas where oral examination remains indispensable.