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Issuing Practice Directions — Need For Review
by Justice K.N. Goyal*
Cite as : (2002) 1 SCC (Jour) 1
In Bipin Shantalal Panchal v. State of Gujarat1 a sessions trial for various offences under the Narcotics Drugs and Psychotropic Substances Act was unduly delayed and the accused persons who had been denied bail were obliged to remain in jail for several years. There were several reasons for the delay.
One reason was that a trial Judge after examining five witnesses "chose to remain in limbo" because he expected his retirement two months' hence. This was obviously a very improper practice.
His successor then ordered day-to-day trial and resumed examining witnesses. He was, however, obstructed in his efforts by frivolous objections of the defence counsel to the admissibility of various documents. Once the Judge disallowed the objections after hearing both sides at length and passed a detailed order. The defence counsel then requested him for staying further proceedings so that he could challenge his order before the High Court. The Judge acceded to this request and went on extending the stay. Ultimately the defence did not challenge the order at all and thereafter the trial was resumed.
Next time an objection of defence counsel to the admissibility of another document was upheld. The prosecution then sought time to challenge that order in the High Court which was granted, and thereupon the accused made an application for being released on bail due to delay in the trial.
Against this background the Hon'ble Supreme Court issued a general practice direction in para 14 of the report as follows:
"Whenever an objection is raised during evidence-taking stage regarding the admissibility of any material or item of oral evidence the trial court can make a note of such objection and mark the objected document tentatively as an exhibit in the case (or record the objected part of the oral evidence) subject to such objections to be decided at the last stage in the final judgment. If the court finds at the final stage that the objection so raised is sustainable the Judge or Magistrate can keep such evidence excluded from consideration. In our view there is no illegality in adopting such a course. However, we make it clear that if the objection relates to deficiency of stamp duty of a document the court has to decide the objection before proceeding further. For all other objections the procedure suggested above can be followed."2
The Bench visualised two advantages in following this procedure. First, the time in the trial court would not be wasted in deciding the objections and the court can continue to examine the witnesses. Second, the superior court could determine the correctness of the view taken by the trial court regarding that objection without having to remit the case to the trial court for fresh disposal.
With utmost respect, it may be pointed out that the practice directed is likely to create complications and cause delay. The trial court will be obliged to take on the record clearly inadmissible documents and inadmissible, irrelevant or scandalous questions put while cross-examining the witnesses, though "subject to objections". This will unnecessarily involve waste of time. It will also prolong the examination of the witnesses. This may also create an impression that the Judge is too dull to make up his mind, inasmuch as the decision on admissibility is postponed.
Secondly, very often in such cases the trial Judge forgets to record his decisions on admissibility and relevancy while delivering the judgment. Sometimes, as happened in this very case, the Judge who recorded part of the evidence has retired or been transferred in the meantime, and the final decision is made by another Judge. That may also be a factor in his forgetting to record such decisions in the judgment.
One disadvantage of deferring decisions on matters of admissibility and relevancy is that the parties' counsel are not sure about which evidence was going to be taken into consideration by the Judge and which not.
Such delays can be prevented by the superior courts being more strict in admitting revisions and writ petitions during the pendency of the trial.
There is another aspect of the matter. Such practice directions do not amount to "law declared by the court". Sometimes even Single Judges of High Court issue practice directions. The proper procedure for issuing such direction should be that they are first considered either by the full court or by the Administrative Committee of the Court or a Special Committee constituted for the purpose, and the directions should be issued over the signature of the Chief Justice on behalf of the Court. This is the procedure followed in England as would appear from the numerous "Practice Directions" published in the English law reports. The High Courts in the past also used to issue general letters and circular orders for the guidance of the presiding officers of the lower courts. The same procedure should, it is respectfully submitted, be followed both by the Supreme Court and the High Courts, instead of different Benches or different Judges issuing general directions on their own.
- (2001) 3 SCC 1
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- Id., at para 14.
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