Judgment : This case raises certain interesting questions regarding procedures adopted by the courts recording oral evidence. What is the duty of such courts to the witnesses concerned, the parties to litigation and their counsel? How can it be ensured that a fair and transparent procedure is followed in the matter of recording oral evidence? What safe norms should be insisted by the system from judicial functionaries to ensure that fairness and transparency is ensured in the procedure adopted? 2. Petitioner, a lawyer practising at the High Court, has come before this Court with this petition to expunge certain observations made by the learned Sessions Judge, in the judgment in a Sessions case. .3. That was a prosecution against two accused persons who faced allegations inter alia under S. 3 (1)(x) of the Scheduled Castes and Schedules Tribes (Prevention of Atrocities) Act. It was a judgment of acquittal in favour of the said two accused persons. To cut a long story short, petitioner was examined as PW3 in that case. The petitioners wife was examined as PW1. PW1, it was alleged, belongs to the Scheduled Caste whereas the petitioner does not belong to any Scheduled Caste or Scheduled Tribe. The evidence of PW1 was sought to be assailed on various grounds during cross examination. Inter alia, it was suggested that the petitioner and his wife were actuated by mala fides on account of the prior strain in their relationship with the accused. PW1 was in the witness box and faced cross-examination. It appears from the evidence of PW1, as recorded by the learned Sessions Judge, that as many as 63 complaints were made by PW1 to the police against the accused persons and their parents and that police had referred such complaints and had not taken any action on such complaints. It was further admitted, again as per the recorded testimony, that there were many civil litigations also. PW1 had signed that deposition. She does not appear to have raised any objections at any time while signing the deposition or thereafter. The learned Sessions Judge in para 9 of the judgment of acquittal while considering point No.1 that was raised, i.e., about the acceptability of the evidence of PWs 1 to 3 proceeded to observe as follows: ."9. PW1 had signed that deposition. She does not appear to have raised any objections at any time while signing the deposition or thereafter. The learned Sessions Judge in para 9 of the judgment of acquittal while considering point No.1 that was raised, i.e., about the acceptability of the evidence of PWs 1 to 3 proceeded to observe as follows: ."9. Point No.1 :- In order to bring home the charge levelled against the accused persons the prosecution has relied on the evidence of Pws1 to 3 apart from the medical evidence. Before analysing the evidence of PWs 1 to 3, it is to be noted that admittedly there were 63 criminal cases and several civil cases were launched against the parents of the accused persons by PWs 1 and 3, the victim and her husband who is a practising lawyer at High Court of Kerala and they are neighbours. It is also an admitted fact that all the 63 cases launched against the parents of the accused were referred by the police as if those were false. PW1 belongs to a scheduled caste whereas PW3 her husband belongs to Ezhava community. Therefore, the evidence of PWs 1 to 3 have to be scrutinised and analysed meticulously as there is every chance of tutoring in this case." 4. The petitioner has now come to this Court with a prayer that the portions in para 9 extracted above, which I have underlined deserve to be and may be expunged. I have extracted the entire para 9. But the petitioner chooses to make the prayer for expunging only the observations underlined above. What is the reason? Petitioner submits that the said observations are unjustified and unwarranted. They portray the petitioner in a negative manner and in very poor light. 5. I have considered all the relevant inputs. It would be impossible for the Court to come to a conclusion that the above observations are unjustified and unwarranted. In a case like the instant one, where the acceptability of the evidence of PWs 1 and 3 is the most crucial issue to be considered, the admitted evidence, [as per recorded testimony] of the existence of prior animosity and prior proceedings between the parties is certainly of crucial and vital relevance. In a case like the instant one, where the acceptability of the evidence of PWs 1 and 3 is the most crucial issue to be considered, the admitted evidence, [as per recorded testimony] of the existence of prior animosity and prior proceedings between the parties is certainly of crucial and vital relevance. If the learned Judge had not adverted carefully to such prior animosity, I would certainly have held that the learned Judge has abdicated his jurisdiction and has not considered the materials with due application of mind. 6. Thus, on the recorded testimony, I am of opinion that the portions sought to be expunged cannot be said to be unwarranted. Moreover, I do note that they do not cause any embarassment or prejudice to the petitioner or his wife. The court was only expressing the need to carefully advert to and evaluate the evidence on record. By no stretch of imagination can it be held that the said observations are unnecessary, unjustified and unwarranted. Nor do I think that they cause any embarassment or prejudice to the petitioner or his wife, when viewed objectively. 7. Thepetitioner has yet another grievance to make. The petitioner submits that the evidence of the petitioner and his wife have not been recorded correctly, accurately and truthfully by the learned Judge. According to the petitioner, the real question put to his wife was only whether there were about 63 petitions filed by her against the parents of the accused and she had only replied that she did not know. This was wrongly recorded by the learned Sessions Judge as an admission that there were actually 63 cases filed before the police by PW1 against the accused and that the police had referred the same as false. .8. Thus, it boils down to a question of correctness of the evidence recorded by the learned Sessions Judge. The petitioner submits that the learned Judge (as also many other Judges) is not in the habit of reading over the depositions of the witnesses and therefore PW1 or the petitioner did not get a contemporaneous opportunity to know that the oral evidence was incorrectly recorded by the learned Sessions Judge. Therefore, PW1 or the petitioner did not and could not make prompt and contemporaneous objection against the recorded testimony. The petitioner in this Crl. Therefore, PW1 or the petitioner did not and could not make prompt and contemporaneous objection against the recorded testimony. The petitioner in this Crl. M.C filed by him to expunge the observations in the judgment has raised objections for the first time and incidentally against the alleged improper recording of the sworn testimony by the learned Sessions Judge. The petitioner submits that witnesses are helpless. They are victims of the tyranny of the formal and charged atmosphere prevailing in Court. They cannot insist that the evidence must be read over to them by the Presiding Officer. Even if literate they cannot muster sufficient strength or .courage to point out to the Court the inadequacy, inexactitude, inaccuracies and errors committed in the recording of oral testimony by the Presiding Officer. Most witnesses would choose to sign the testimony recorded by the Presiding Officer on the assumption that it must have been recorded correctly and truthfully. The witness invariably would realise the deficiency in recording evidence only later. In these circumstances the mere fact that objection had not been raised earlier against the correctness in recording evidence may not be reckoned as crucial, it is urged. 9. The contentions raised are disturbing and oblige me to have a look at the efficacy of the procedures adopted and followed in the recording of evidence before courts. It is perhaps shocking to note that courts in the State continue to follow the archaic procedure of manual recording of the oral evidence in his hand by the Presiding Judge. He hears the evidence and records the same in his own hand. Science and Technology on this aspect does not appear to have peeped into the Kerala Court halls at all. The amount of judicial hours spent (or wasted) on the manual recording of oral evidence in courts is shocking. In an age when it must easily and inexpensively be possible to have audio and video recording of the oral evidence of witnesses, we are still guilty of continuing with such archaic, time consuming, less efficacious and less efficient procedure of manual recording of evidence. The introduction of the procedure of video/audio recording of evidence will at one stroke make trial much faster, much more efficient and efficacious. It shall eliminate room for complaints like the one raised in this case. It shall take away the tedium and monotony of trials from the court rooms. The introduction of the procedure of video/audio recording of evidence will at one stroke make trial much faster, much more efficient and efficacious. It shall eliminate room for complaints like the one raised in this case. It shall take away the tedium and monotony of trials from the court rooms. It shall help the Appellate Judge and superior courts to see for themselves the demeanour of witnesses which today is the monopoly of the Trial Judge. 35 years back when I stepped into the Sessions Court, Calicut as a law student for my court training I was shocked and left aghast that the trial Judge has to himself manually record the entire oral evidence. It was felt that anachronism will soon vanish. Three and a half decades have made no difference to the Trial Court room or the procedure there. Infrastructure has not improved at all. Getting closer to the finishing tape of my judicial career and life, I realise that there is no prospect of improvement in the near future. Who is worried about qualitative improvement of the truth discovery process of trial ? Tolerate I must, of the system and its inadequacies. But try as I might, I am unable to fatalistically accept and give up. I do hence express my anguish and hope that qualitative changes shall be forthcoming in the near future. 10. I have digressed. Bottled up frustrations and disappointments about the working of the system have betrayed me and have come out. But purity of purpose must certainly earn me condonation, pardon and remission for the disgression. .11. Let me now consider how in the given situation we can ensure that procedure for recording of evidence is pure and transparent. The law expects the judicial officer to perform a sublime (call it divine if you so choose) function. Absolute purity and perfection is expected from a Judge. He must alertly and dispassionately take part in the trial and truthfully record the evidence. The manner in which he performs that function must not only satisfy his judicial conscience, it must also comply with the stipulated rules. His infectious purity must inspire others. It must generate and demand unquestioned acceptance. The Code of Civil Procedure, the Code of Criminal Procedure and the Kerala Civil and Criminal Rules of Practice suggest the manner in which the evidence is to be recorded. His infectious purity must inspire others. It must generate and demand unquestioned acceptance. The Code of Civil Procedure, the Code of Criminal Procedure and the Kerala Civil and Criminal Rules of Practice suggest the manner in which the evidence is to be recorded. The Judge can take down deposition in the form of a narrative. Wherever necessary, and particularly when a court question is put, it is better to record the same as a question and answer. When an impermissible leading question is put and the answer obtained, it must also be recorded as a question and answer. The demeanour of the witness wherever necessary can be/has to be recorded. The record of the deposition must truthfully, accurately and loyally represent what transpired in the court. The Judge recording the evidence must have the satisfaction that it so represents the events in court. It must be so and it must appear to be so. In the Indian legal system the court must be open. The witnesses, the litigants as also all present in Court must have the satisfaction that the record of deposition does truthfully represent the events that transpired in court. The system must go all out to be transparent and let all concerned see, know and feel the .transparency. That is why the law insists that the deposition must be read over to the witness and admitted by him to be correct before the judge concerned signs the deposition. The witness concerned, litigants and lawyers then get an opportunity to point out inaccuracies and inadequacies. They may not do so in many cases, but the awareness that they can do so shall go a long way to ensure rectitude, fairness and transparency. 12. I extract below the relevant stipulations of the Codes of Criminal and Civil Procedure and the Kerala Rules of Criminal and Civil Practice which deal with the obligation to read over the deposition. S.278. Procedure in regard to such evidence when completed: "(1) As the evidence of each witness taken under S.275 or S.276 is completed, it shall be read over to him in the presence of the accused, if in attendance, or of his pleader, if he appears by pleader, and shall, if necessary, be corrected. S.278. Procedure in regard to such evidence when completed: "(1) As the evidence of each witness taken under S.275 or S.276 is completed, it shall be read over to him in the presence of the accused, if in attendance, or of his pleader, if he appears by pleader, and shall, if necessary, be corrected. 2) If the witness denies the correctness of any part of the evidence when the same is read over to him, the Magistrate or Presiding Judge may, instead of correcting the evidence, make a memorandum thereon of the objection made to it by the witness and shall add such remarks as he thinks necessary. 3) If the record of the evidence is in a language different from that in which it has been given and the witness does not understand that language, the record shall be interpreted to him in the language in which it was given, or in a language which he understands." S.283: Record in High Court: "Every High Court may, by general rule, prescribe the manner in which the evidence of witnesses and the examination of the accused shall be taken down in cases coming before it and such evidence and examination shall be taken down in accordance with such rule." R.57 of the Criminal Rules of Practice 57. Signing of depositions:- After a deposition has been read over to the witness, the last page thereof shall be signed in full by him. The Judge shall initial every page if the deposition is not recorded in his hand. A certificate in the following form shall be appended at the foot of the deposition and the Judge shall affix his signature thereto over his name: "Taken down by me/before me in open court, interpreted/read over to the witness and admitted by him to be correct". (emphasis supplied) 13. The following stipulations in the Code of Civil Procedure suggest the requirement of reading over the oral testimony before the witness is called upon to sign the same. Rr. 5 and 13 of O.18 do not specifically refer to the requirement of reading over, but the stipulations of Rr.7 and 16(3) as also R.146 of the Kerala Civil Rules of Practice give clear indications. Rr. 5 and 13 of O.18 do not specifically refer to the requirement of reading over, but the stipulations of Rr.7 and 16(3) as also R.146 of the Kerala Civil Rules of Practice give clear indications. .O.XVIII R.7: Evidence under S.138:-Evidence taken down under S.138 shall be in the form prescribed by R.5 and shall be read over and signed and, as occasion may require, interpreted and corrected as if it were evidence taken down under that rule. .O.XVIII R.16(3) : The evidence so taken shall be read over to the witness, and, if he admits it to be correct, shall be signed by him, and the Judge shall, if necessary, correct the same, and shall sign it, and it may then be read at any hearing of the suit. (emphasis supplied) 14. R.146of the Kerala Civil Rules of Practice does also deal with the procedure for recording the deposition and obtaining signature of the witness. It reads: "R.146 : Signing of depositions:- (1) After a deposition has been read over to the witness the last page thereof shall be signed in full by him. The Judge shall initial every page if the deposition is not recorded in his hand. A certificate in the following form shall be appended at the foot of the deposition and the Judge shall affix his signature thereto over his name, "Taken down by/before me in open Court, interpreted/read over to the witness and admitted by him to be correct". [(2) If the witness denies the correctness of any part of the evidence when the same is read over to him, the Presiding Judge may, instead of correcting the evidence, make a memorandum thereof the objections made to it by the witness and shall add such remarks as he thinks necessary.] (emphasis supplied) 15. It thus is clear from all express stipulations as also from general principles relating to fairness and transparency that all Courts -whether Civil or Criminal have the obligation under this relevant provision to read over the deposition to the witness before he is called upon to affix the signature. These rules command implicit and complete compliance and obedience. Every judicial officer who wants to comply with the letter and spirit of the provisions cannot but resort to that course. 16. These rules command implicit and complete compliance and obedience. Every judicial officer who wants to comply with the letter and spirit of the provisions cannot but resort to that course. 16. I am shocked to hear the submissions at the Bar that this procedure is not observed invariably at least in some courts. I cannot believe the same. If true that cannot certainly be permitted or tolerated. Let the message go loud and clear that every court which records the evidence of witnesses must after the recording of evidence is complete, with the witness in the witness box, read over to the witness loudly and clearly his deposition to the hearing of all present in court (at least the witness and the rival contestants/counsel if the vocal chords are not powerful enough). That the Presiding Officer has great work pressure; that while recording of the evidence the Presiding Officer has repeated loudly what he is recording; that ordinarily no objections are raised by anyone or that this procedure takes away a lot of time of the Court are not reasons or excuses that can justify deviation from the mandate. The Presiding Officers must realise that reading of the recorded depositions then and there will help them to correct innocuous human errors and inadequacies in recording. Many a time mind travels faster than the hand and a word or words are omitted to be recorded by the court. Reading over helps the cause of perfection. More importantly it serves the cause of fairness, transparency and accuracy. That procedure helps to command implicit acceptance of the acts of the judicial personnel. 17. The sublime Bar has a duty to insist that the procedures adopted by the courts are transparent and correct. Counsel must "counsel" the court to follow the correct procedure and firmly insist that the depositions must be read in court before the witness is allowed to leave the witness stand. I assume that every trial lawyer worth his salt must be simultaneously recording or noting down (or getting his junior or clerk to record or note down) the deposition. While the Judge reads over the deposition such counsel must ensure that his noting does justice to the record of the Court. I assume that every trial lawyer worth his salt must be simultaneously recording or noting down (or getting his junior or clerk to record or note down) the deposition. While the Judge reads over the deposition such counsel must ensure that his noting does justice to the record of the Court. This would help to eliminate the vice of counsel seeking time to get ready for arguments immediately after trial to enable them to get a certified copy of the depositions. Witnesses can and are entitled to refuse to sign the deposition if the same is not read over to them. Errors, if any pointed out, will have to be corrected by the Judge. If objections raised are unacceptable they will have to be recorded and overruled. The administrative superiors will have to insist that this requirement is strictly followed by all courts. The Bar has legitimate interest in the sublimity and the claims for the sublimity of the judicial process. In the yearning and march towards perfection in the judicial process the Bar has to play its part. It is here that the corrective dimension of advocacy assumes importance. The Bench and the Bar are equal partners in the process and equal inheritors of the legacy. If any court does not observe the obligation to read over the deposition, the sublime Bar must have the moral courage to courteously but firmly insist on compliance. Every judicial officer and every member of the Bar has the solemn duty to ensure that the procedures adopted by the court are fair and transparent and inspire implicit acceptance of the polity. We live proudly in a Society wedded to law. Everyone including Judges must have humility before the rule of law. When non-compliance of the law is pointed out one has to correct himself and implicitly comply with the mandate of the law. 18. Inthis case also I shall assume that the deposition has been read over to the witness. I shall not lightly assume that the learned Sessions Judge has not followed the mandate of law. In the instant case, the petitioner is a counsel practising in the High Court. He was present in court, it appears. If no objection had been taken and signatures were affixed in the deposition without demur, I shall and must assume that it has been recorded properly. In the instant case, the petitioner is a counsel practising in the High Court. He was present in court, it appears. If no objection had been taken and signatures were affixed in the deposition without demur, I shall and must assume that it has been recorded properly. It is relevant and significant to note that even after allegedly coming to know that the evidence has not been recorded properly, the petitioner or PW1 did not take any steps to point out the inadequacy/incorrectness to the learned Sessions Judge and get the same corrected. The attempt of the petitioner at this stage before this Court to contend incidentally that the depositions were not recorded by the learned Sessions Judge correctly cannot certainly inspire confidence. The objections raised now cannot be countenanced. There is nothing to lead this Court to a conclusion that the evidence has not been correctly and truthfully recorded by the learned Sessions Judge. The presumption is that the evidence must have been recorded truthfully and accurately. There is nothing to dislodge the presumption. 19. The petitioner submits that he can independently now show that the alleged admission is incorrect and that there never was 63 petitions filed before the police. The counsel relies on certain documents obtained under the Right to Information Act to show that even according to the police as on the date of recording of evidence of PW1, only 10 petitions and only 14 Criminal Cases were there against the accused persons who faced trial and their parents. According to the petitioner, there were no civil litigations also initiated by the petitioner against the accused persons though he was impleaded as an additional plaintiff in one such litigation. It was certainly for the petitioner and/or PW1 to clarify the admissions allegedly made by PW1 and recorded by the learned Sessions Judge. In the present proceedings on the basis of Annexure 3 placed before the Court, I am not persuaded to enter a finding of fact that the admission was not made by PW1. At any rate, the inaccuracy in the recorded testimony about the number of petitions and the criminal cases initiated does not at all militate against the need or relevance of the observations which are sought to be expunged now. At any rate, the inaccuracy in the recorded testimony about the number of petitions and the criminal cases initiated does not at all militate against the need or relevance of the observations which are sought to be expunged now. Whether such petitions were 63 as allegedly admitted by PW1 in the recorded deposition or only 10 petitions plus 14 cases as now admitted, the impugned observation continue to be relevant and necessary. 20. Petitioner submits that the petitioner would have ignored these observations and would not have raised any objections but for the fact that against the petitioner certain proceedings have been initiated before the Bar Council. Such proceedings have been initiated on the strength of the impugned observations it is submitted. The petitioner shall certainly be at liberty to show that the petitioner or his wife had not intended to make any such admissions. He shall be at liberty to contend that the alleged admissions made (or alleged to be made by his wife, PW1) were not really made by her and that at any rate, those admissions are not factually correct. The option of the petitioner to resort to that course in the proceedings allegedly initiated against him by the Bar Council will not in any way be affected by the presence of the impugned observations in the judgment in SC No.208/02 or the dismissal of this Crl.M.C by this Court. 21. With the above observations, this Crl.M.C is dismissed. 22. Registry shall communicate this order to all Subordinate Courts drawing their specific attention to paragraphs 8 to 17.