Duty of the Judge/Magistrate while making a local inspection

Introduction: There is no provision in the Code of Criminal Procedure,1973 for appointing an advocate-commissioner to note down the physical features of scene of offence. Of course, Section 310 of the the Code,1973 permits a Judge/Magistrate to make a local inspection and not a local enquiry. It is seminal to note that  the purpose for local inspection by the trial Court is to properly appreciate the evidence in the given case. In catena of rulings, it was held that before embarking upon the local inspection either suo motu or on the application of the parties, the trial Court must be convinced itself that such a local inspection of the scene of offence is necessary to appreciate the evidence properly. Under Section 284 of Cr.P.C. a commission can be issued sparingly for the examination of the witnesses. A party cannot compel the trial judge to visit the scene of the offence by making the application before him.

Section 310 of the Code of Criminal Procedure,1973 reads as follows:

(1) Any Judge or Magistrate may, at any stage of any inquiry, trial or other proceeding, after due notice to the parties, visit and inspect any place in which an offence is alleged to have been committed, or any other place which it is in his opinion necessary to view for the purpose of properly appreciating the evidence given at such inquiry or trial, and shall without unnecessary delay record a memorandum of any relevant facts observed at such inspection.

(2) Such memorandum shall form part of the record of the case and if the prosecutor, complainant or accused or any other party to the case, so desires, a copy of the memorandum shall be furnished to him free of cost.

In P Appanna and other Vs. P. Konda and another, 1974 (1) ALT (NRC) 35.2, some guiding principles are explained with regard duty of a judge/magistrate who conducts local inspection.

  1. Section 310 of (Old section 539-B) of the Criminal Procedure Code permits a Magistrate to make a local inspection and not a local enquiry.
  2. local inspection is permitted only for the purpose of properly appreciating the evidence in the moved it cannot be allowed to take the place of evidence.
  3. While making a local inspection Magistrate should avoid making enquiries from the People on the spot with regard to the truth or otherwise of the matter in dispute.
  4.  A Magistrate should not allow himself to be prejudiced in his mind one way or the other by the information that might be given by persons who gather at the place of inspection.
  5. Whenever local inspections are made it is incumbent on the Magistrate to exercise caution and impartiality and to evince great care for the avoidance of illegal gossip or vague rumours reaching their ears. 
  6. By a local inspection a Magistrate can use the testimony of his own senses to test the veracity of the witnesses who give evidence before him regarding the features of the locality but not for deciding the points of controversy between the parties solely with reference to the other observations made at the local inspection.
  7. Extra -judicial information collected by the Judge/Magistrate at that stage-cannot form a basis for an order .

Recently, His Lordship Hon’ble Sri Justice U.Durga Prasad Rao, in Dovari Venkataraman and others Vs. State of A.P. rep. by P.P., 2015 2 ALD (Crl.) (A.P.) 109 = 2015 (3) ALT (CRL.) (A.P) 125 succinctlyexplained the purport of section 310 of Cr.P.C as to local inspection:

  1. Predominantly the purpose for local inspection by the trial Court is to properly appreciate the evidence given in the case.
  2. In other words, before embarking upon the local inspection either suo motu or on the application of the parties, the trial Court must be convinced itself that such a local inspection of the scene of offence is necessary to appreciate the evidence properly.
  3. When the Court did not feel such necessity, neither the parties nor the higher courts can either commend or command the trial Court to invariably conduct a  local inspection.
  4. A perusal of above section 310 of CR.P.C shows that it contains three important aspects.

(i) that it must be necessary to appreciate the evidence given;

(ii) that due notice of inspection should be given to the parties;

(iii) that a memorandum of facts observed should be recorded without unnecessary delay.

In the case of the State of Maharashtra v. Dayanand Tukaram Raut and others (1) 1998 Crl.L.J. 1333 wherein it was held thus: In my view the aforesaid provision cannot be invoked when the Court has not felt the necessity or desirability of having such local inspection which can be done only for the purpose of appreciating the evidence given before the Court. There is no duty cast on the Court to have local inspection simply because the prosecuting agency or one of the parties to the litigation makes an application to the Court and, therefore, there is no question of directing the lower Court to have local inspection in respect of the property which is the subject-matter of the criminal trial. This is not to say that the trial Court should have no local inspection as and when it is felt necessary or desirable by the Court itself.

In Boya Kothi Lakshmanna (A-13) and another Vs. State of A.P. rep. by P.P. High Court of A.P., Hyderabad and another, 2014 1 ALD (Crl.) (A.P.) 711 = 2014 (2) ALT (CRI) (AP) 246, it was observed that:

  • There is no provision in the Code of Criminal Procedure for appointing an advocate-commissioner to note down the physical features of venue of offence to prepare an observation report and rough sketch and to submit the same to the court. See. Para 7.
  • Under Section 284 of Cr.P.C. a commission can be issued sparingly for the examination of the witnesses.
  • Section 310 of Cr.P.C. enables a judge or magistrate at any stage of enquiry or trial or other proceeding to visit and inspect any place in which an offence is alleged to have been committed or any other place which it is in his opinion necessary to view for the purpose of properly appreciating the evidence given at such enquiry or trial.
  • If the judge or magistrate makes a local inspection, it is obligatory on his part to record a memorandum of the relevant facts observed by him in such local inspection. The object of local inspection is to understand the evidence and to test the veracity of the witnesses deposing before the court in relation to the physical features of venue of offence.  See. Para 9.
  • The material in the memorandum prepared by the judge or magistrate cannot be treated as evidence.
  • In any case, the judge or magistrate has to use his discretion in the course of enquiry or trial or other proceeding and has to opt for making a local inspection only if it is warranted by circumstances.
  • A party cannot compel the trial judge to visit the venue of the offence by making the application before him.
  • Even if any such application is made, it is for the judge to make a decision by exercising proper judicial discretion whether to make any local inspection or not.
  • Merely because some discrepancies are found in the evidence of the witnesses in relation to the topography of the venue of the offence, it cannot be a ground to urge the trial judge to make a local inspection.  
  • accused has no vested right to insist upon the trial Judge to make a local inspection of venue of offence.

Conclusion:

From the above analogy, it is clear that section 310 of Cr.P.C is different to that of section 284 of Cr.P.C. A commission can be issued sparingly for the examination of the witnesses under section 284 of the Code, 1973 whereas Section 310 of Cr.P.C. enables a judge or magistrate at any stage of enquiry or trial or other proceeding to visit and inspect any place in which an offence is alleged to have been committed or any other place which it is in his opinion necessary to view for the purpose of properly appreciating the evidence given at such enquiry or trial. However, accused has no vested right to insist upon the Judge/Magistrate to make a local inspection of scene of offence. the judge or magistrate has to use his discretion in the course of enquiry or trial or other proceeding and has to opt for making a local inspection only if it is warranted by circumstances, a fortiori, whenever local inspections are made it is incumbent on the Magistrate to exercise caution and impartiality and to evince great care for the avoidance of illegal gossip or vague rumours reaching their ears.The material in the memorandum prepared by the judge or magistrate cannot be treated as evidence.

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Criminal Law

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