AJN 1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL APPLICATION NO.905 OF 2010 IN CRIMINAL APPEAL NO.58 OF 2009 The State of Maharashtra ... Applicant Vs. Durgadas Devichand Rathod & Ors. ... Respondents Mr. Ravi Kadam, Advocate General with Mr. P.A. Pol, Public Prosecutor for the applicant. Mr. Nitin Pradhan, amicus curiae. CORAM: MRS. RANJANA DESAI & MRS. V.K. TAHILRAMANI, JJ. DATED : 2ND SEPTEMBER, 2010. P.C.:- 1. On 26/3/2009, the Division Bench presided over by Justice Bilal Nazki gave a direction that no Special Executive Officer shall be allowed to record the dying declarations and, wherever it is possible it should be recorded by the Judicial Magistrate and wherever it is not AJN 2 possible by the Judicial Magistrate, then by concerned Revenue Officers not below the rank of Nayab Tahsildar. The Division Bench further directed that throughout the State of Maharashtra, no identification parade shall be conducted by the Special Executive Officers till further orders. The Division Bench ordered that the identification parade shall be conducted by the Judicial Magistrates as far as possible, and if the Judicial Magistrates are not available, then by concerned Revenue Officers not below the rank of Nayab Tahsildar. The Division Bench added a rider that if the Government feels any difficulty on the ground of implementing this order, they shall be at liberty to approach this court and point out the difficulties. The Division Bench observed that the said order shall remain in force till further orders and till the learned Advocate General is heard. 2. In view of the liberty granted by the Division Bench, the State of Maharashtra has moved this application for recall of order dated 26/3/2009. AJN 3 3. We have heard learned Advocate General Mr. Kadam and Mr. Pol, learned Public Prosecutor. We had requested Mr. Nitin Pradhan to assist us. He has accordingly assisted us. We have heard him at some length. 4. In the application, it is stated that in view of the direction issued by this court in it's order dated 26/3/2009, the investigating officers request the Judicial Magistrates who are already overburdened with work to record dying declarations and to conduct identification parades. The absence of the Judicial Magistrates from the court during court hours would increase the pendency of criminal cases. It is further stated that the Judicial Magistrates would be required to attend the Sessions Court and to give evidence and the problem would be aggravated if the concerned Judicial Magistrate is transferred to another station. In that case, for the purpose of attending the Sessions Court, he will be required to leave the headquarters for more than one day which would again AJN 4 contribute to arrears. 5. Learned Advocate General has requested the court to recall order dated 26/3/2009 for the reasons stated above. 6. Mr. Pradhan, learned amicus curie has pointed out that Article 227(2)(b) empowers the High Court to make and issue general rules and prescribe forms for regulating the practice and proceedings of courts in the territories in relation to which it exercises jurisdiction. Pursuant to this provision, this court has framed Rules and incorporated them in the Bombay High Court Criminal Manual prescribing mandatory guidelines to be followed by the subordinate judiciary. Rule 16(1) of Chapter I of the Criminal Manual states the guidelines for holding identification parades. Mr. Pradhan submitted that Rule 16(1) states that the identification parade should be conducted by the Executive Magistrate and Honorary Magistrate not doing judicial work. Counsel submitted AJN 5 that therefore this court cannot direct the Judicial Magistrate to hold identification parade. 7. So far as dying declarations are concerned, Mr. Pradhan submitted that the law does not provide any form in which the dying declaration is to be recorded. The dying declaration may be recorded by any person attending to the patient. However, as far as possible, it may be recorded by independent persons like the Executive Magistrate, Medical Officer, etc. to enhance its evidentiary value. Counsel submitted that whenever time and condition of the patient permits, it should be recorded by Special Judicial Magistrate / Special Metropolitan Magistrate / Special Executive Magistrate specially empowered to record the dying declaration by the High Court or the State Government as the case may be. Counsel submitted that appointment of Special Judicial Magistrate and Special Metropolitan Magistrate under Sections 13 and 18 respectively of the Code of Criminal Procedure (for short, “the Code”) or appointing of a AJN 6 Special Executive Magistrate under Section 21 of the Code for a particular area and for performance of a particular function as conferrable under the Code can be monitored by this court by laying down their qualifications and expertise. Counsel submitted that there should be a panel of Magistrates from the Taluka level and each of them should be recommended by the concerned District Judge/Sessions Judge. Counsel submitted that the appointee could be a practicing lawyer with minimum experience of three years and maximum experience of seven years or any retired Judicial Officer, Officer of the Registry of the District Courts and High Court, or the Government servants, who have the specified experience and qualification as specified by the High Court and their term of appointment should be only for a year. Counsel submitted that the suggestions made by him would ensure proper holding of identification parades and recording of dying declarations. 8. Learned Advocate General Mr. Kadam, who is AJN 7 assisted by Mr. Pol also submitted that identification parades must be held strictly in accordance with the provisions contained in the Criminal Manual. He submitted that it would not be proper to identify any category of persons holding particular qualification to record dying declarations. He submitted that any responsible and literate person can record a dying declaration. But, if time and condition of the patient permits it could be recorded by Special Judicial Magistrates appointed under Section 13 of the Code or Special Metropolitan Magistrates appointed under Section 18 of the Code or Special Executive Magistrate appointed under Section 21 of the Code. Learned Advocate General submitted that the General Administrative Department can prepare a scheme for training such officers. Learned Advocate General submitted that the order dated 26/3/2009 is adversely affecting criminal justice administration and may be revoked immediately. AJN 8 9. We find substance in the anxiety expressed by learned Advocate General that directing the Judicial Magistrate to hold identification parades and record dying declarations would place additional burden on them which will affect their judicial work. Besides, they would be required to give evidence in a court of law which is not desirable. 10. Criminal Manual is issued by this court for guidance of the criminal courts and officers subordinate to it. Source of power to issue Criminal Manual can be traced to Article 227(2) and (3) of the Constitution of India. Under proviso to Article 227(3) prior approval of the Governor is necessary for issuance of Criminal Manual. Provisions of Criminal Manual are, therefore, binding on criminal courts and the officers subordinate to it. Paragraph 16(1) of Chapter I of the Criminal Manual relates to identification parades. It states that it is not desirable that the Judicial Officers should associate themselves with the identification parades. All Civil Judges and Judicial AJN 9 Magistrates are directed that they should not participate in identification parades which are conducted by the police for investigation purposes. The Government circular issued by the Home Department dated 22/4/1955 for the information of the Civil Judges and Judicial Magistrates is referred to in this connection. It states that the police officers should obtain the help of Executive Magistrates or Honorary Magistrates in holding identification parades. In view of the clear provisions contained in Criminal Manual, the Judicial Magistrates cannot be directed to hold identification parades. Order dated 26/3/2009 which directs that the identification parades should be held by the Judicial Magistrates will have to be recalled to that extent. 11. Recording of the dying declaration has to be done properly. In a criminal case, it is a very important piece of evidence. It is well settled that a conviction can rest solely on a dying declaration which inspires confidence. No particular form of a dying declaration is prescribed nor AJN 10 is it laid down anywhere that it should be recorded by any particular person. This is obviously because in the nature of things, there is never any certainty as to when the person whose dying declaration is to be recorded would die and, there may not be enough time to call a person having prescribed qualification or someone identified as the only person who can record the dying declaration. In a given case, even a literate neighbour or some other respectable person who is easily available can record a dying declaration. Therefore, in our opinion, it would not be proper to restrict the recording of the dying declaration to any category or class of persons holding particular qualification. However, to ensure that the dying declaration is recorded properly whenever time and condition of the victim permits, the same should be recorded by the Special Judicial Magistrates appointed under Section 13 of the Code in the district places and Special Metropolitan Magistrates appointed under Section 18 of the Code in Mumbai city. Similarly, the Executive Magistrates appointed under Section 20 of the Code and AJN 11 Special Executive Magistrates appointed under Section 21 of the Code can also be requested to record the dying declarations. The General Administrative Department in consultation with the Law and Judiciary Department, Government of Maharashtra should prepare an exhaustive scheme for appointing such officers and for imparting training to them as regards recording of dying declarations and whenever time and condition of the victim permits, the dying declaration should be recorded by such an officer. However, this cannot be interpreted to mean that the dying declaration has to be recorded by only such persons and by no other person. Such a direction would be counterproductive. That would adversely affect the investigation of a case. It may particularly create difficulties in cases of bride burning which take place in remote villages of Maharashtra where it may not be possible to call a person holding a particular post or a person having specified qualification to record a dying declaration. We are, however, not inclined to accept Mr. Pradhan's suggestion that practicing lawyers AJN 12 having three years minimum and seven years maximum experience should be appointed to record dying declarations. In view of the above, we are of the opinion that direction contained in order dated 26/3/2009 that dying declarations should be recorded by Judicial Magistrates will also have to be recalled. Hence, we pass the following order : 12. Order dated 26/3/2009 passed in Criminal Appeal No. 58 of 2009 is recalled. It is directed that the identification parade be held strictly in accordance with the guidelines laid down in the Criminal Manual. They shall be held by the Executive Magistrates and Honorary Magistrates, who are not doing judicial work. The dying declarations can be recorded by any literate person available for the purpose of recording it. If time and condition of the patient permits, the dying declaration should be recorded by the Special Judicial Magistrate or Special Metropolitan Magistrate or Special Executive Magistrate appointed under the Code. The General Administration Department AJN 13 in consultation with the Law and Judiciary Department of the Government of Maharashtra shall prepare an exhaustive scheme for appointing such officers and for imparting training to them in the matter of recording dying declarations. 13. With the above direction, the application is disposed of. 14. Before parting with, we must record our appreciation for the assistance rendered to us by Mr. Pradhan. [MRS. RANJANA DESAI, J.] [MRS. V.K. TAHILRAMANI, J.]