QUESTION & ANSWER

Some questions and answers:

Here some questions and answers are given in dialectical method among Judicial Magistrates Mr Moniruzzaman, Mr. Ariful Islam and the author of this book:

Moniruzzanman: Guru: (1) whether the Statement of a witness recorded u/s. 161 of CrPC in one particular crime could be used against that witness in any other trial enquiry or proceedings by the accused.

(2) Whether the learned Sessions Judge can call for the police diaries of a case which is not under inquiry or trial before him and permit it to be used by the accused for contradicting a witness examined in another case under trial before him.

 (3) Whether Section 162 of the Cr.P.C. permit the use of statement recorded under Section 161 of Cr.P.C. in any other proceeding other than the inquiry or trial in respect of the offence for which the investigation was conducted. 

Dulu: The language of Section 91 is much wider than the language of Section 172 and by no stretch of imagination it could be contended that the case diary maintained under Section 172 of the Code is not a document as contemplated under Section 91(1) of the Code. If that be so and if the court comes to the conclusion that the production of such document is necessary or desirable then, in our opinion, the court is entitled to summon the case diary of another case under Section 91 of the Code de hors the provisions of Section 172 of the Code for the purpose of using the statements made in the said diary, for contradicting a witness. When a case diary, as stated above, is summoned under Section 91(1) of the Code then the restrictions imposed under sub-sections (2) and (3) of Section 172 would not apply to the use of such case diary but we hasten to add that while using a previous statement recorded in the said case diary, the court should bear in mind the restrictions imposed under Section 162 of the Code and Section 145 of the Evidence Act because what is sought to be used from the case dairy so produced, are the previous statements recorded under Section 161 of the Code. [Ref. State of Kerala vs Babu& Ors on 4 May, 1999: see also: http://indiankanoon.org/doc/1435252/]

Ariful Islam:

Brother, what is the periphery of using the case diary?

Dulu: Only section 172 of the code of criminal procedure is the periphery of using the case diary i.e. Section 172 of the Code of Criminal Procedure does not give a criminal court an unfettered right to make such use of a case diary. Sub-clause (2) of Section 172 says that any Criminal Court may send for the police diaries of a case under inquiry or trial in such Court, and may use such diaries, not as evidence in the case, but to aid it in such inquiry or trial. [Ref. State vs Fateh Bahadur and Ors. on 18 April, 1957: AIR 1958 All 1, 1958 CriLJ 1]

Moniruzzanman: Guru:  Is there any basic distinction between informant and complainant?

Dulu: Basically there is no difference between informant and complainant in view of sections 154, 170 and 244(2) of the code of criminal procedure and regulations 243 and 244 of police regulations 1943.

Ariful Islam:

Brother, whether any property (during police investigation) in respect of which any offence is committed, is not produced before Court for physical inspection, whether the Court can pass an order under section 516A of the Code of Criminal Procedure?

Dulu: Yes, the Court can pass the order as for example, if the property is a building, the video of that building can be shown to the Court and in seeing the same the Court can pass the order in respect of that property. Ref. 21 DLR 807

Moniruzzanman: Guru:  What is the scope of section 173(3B) of the Code of Criminal Procedure?

Dulu: The scope of sub- section 8 of the said section gives power to the Judicial Magistrate to order further investigation, after filing of the report by the police, if there is any further report or reports regarding such further evidence in the form prescribed, which needs further investigation. However, the Hon'ble Supreme Court has categorically ruled in Reeta Nag's case that the Judicial Magistrate is not empowered to suo moto order further investigation under Section 173 (8) Cr.P.C. Similarly, the provision is not applicable to the defacto-complainant to seek further investigation. Under the said provision of law, the Magistrate is empowered to order further investigation only based on the subsequent report of the Investigating Office, in other words, the officer in-charge of the police station, collecting further evidence, either oral or document shall forward the same to the concerned Magistrate, by way of additional report and if the Magistrate is satisfied that further investigation is needed, based on such report, he can order for further investigation, to meet the ends of justice.[Ref. A.Mohan vs State Rep. By on 22 December, 2011;Madras High Court, see:  http://indiankanoon.org/doc/199675194/ ]

Ariful Islam:

Brother, when an accused shall be discharged or a charge can be quashed?

Dulu: According to section 241A of the Code of Criminal Procedure if the Magistrate, upon consideration of record of the case and documents submitted therewith and making such examination, if any, of the accused as the Magistarte thinks necessary and after giving the prosecution and the accused an opportunity of being heard considers the cgarge be groundless, he shall discharge the accused and record his reasons for so doing. Again in accordance with the provision of section 242 of the said Code, if, after such consideration and hearing as aforesaid, the Magistrate is of opinion that there is ground for presuming that the accused has committed an offence, the Magistrate shall frame a formal charge] relating to the offence of which he is accused.  In State of Madhya Pradesh v. S.B.Johari and Others [(2000) 2 SCC 57] it was held that the charge can be quashed if the evidence which the prosecutor proposes to adduce to prove the guilt of the accused, even if fully accepted, cannot show that the accused committed the particular offence. In that case, there would be no sufficient ground for proceeding with the trial.

Ariful Islam:

Brother, Can give a brief conception as to Coroner Court of Hong Kong?

Dulu: The following conception is given.  

THE CORONER's COURT What are the Coroner's powers? What types of deaths should be reported to the Coroner? What happens when a reportable death occurs? Inquests What happens at the inquest? Can anyone ask the Coroner to hold an inquest? Certificate of the fact of death Performance Pledge How to contact Coroner's Court? Business Hours Appendix I - The 20 Categories of Reportable Deaths Appendix II - Persons Responsible for Reporting Deaths Appendix III - Examples of Findings which may be made by the Coroner or the Jury Appendix IV - Workflow Chart

THE CORONER's COURT The task of the Coroner's Court is to inquire into the causes and circumstances of certain deaths. As this booklet outlines, the Coroner has extensive powers related to the conduct of affairs relating to such deaths. What are the Coroner's powers? The Coroner is a judicial officer who has the power to: grant burial orders grant cremation orders grant waivers of autopsy grant autopsy orders grant exhumation orders grant orders to remove dead bodies outside Hong Kong order police investigations of death order inquests to be held approve removal and use of body parts of the dead body issue certificates of fact of death What types of deaths should be reported to the Coroner? The Coroners Ordinance sets out 20 categories of deaths (see Appendix I) which should be reported to the Coroner. Anyone responsible for reporting deaths to the Coroner (see the list in Appendix II) should do so as soon as they reasonably can after they know of the death.  What happens when a reportable death occurs? The fact that a death is reportable to the Coroner does not necessarily mean that an inquest has to be held, except for certain categories of death. When a reportable death occurs, the body is sent to either a hospital or a public mortuary, where the pathologist: conducts an external examination of the body reports the findings of this examination or the cause of death, if ascertained, to Coroner recommends waiver of autopsy, and seeks a burial or cremation order if the cause of death can be ascertained seeks an autopsy order if the cause of death cannot be ascertained submits a brief description of circumstances, for example the clinical background. The Coroner considers the pathologist's report and, depending on the case, makes one of the following orders: autopsy waiver of autopsy burial order cremation order. If the Coroner is uncertain of the cause of death or for other reasons, he will: order an autopsy study the autopsy report from the pathologist consider whether an investigation is needed. If the pathologist recommends an autopsy, but the deceased's family applies for a waiver, the Coroner sees the family in chambers, and then decides whether to order an autopsy or a waiver. If the Coroner decides that a reportable death should be investigated, the police carry out the investigation and submit a death investigation report to the Coroner. The Coroner considers this report and decides whether an inquest should be held, calling on expert advice where he so chooses. The Coroner can issue a warrant of entry and search in respect of any premises and place where a death has occurred. If the Coroner decides not to hold an inquest, properly interested persons can write to him to request a copy of the death investigation report. Inquests The Coroner may hold an inquest with a jury of five or without a jury when a person dies suddenly by accident by violence under suspicious circumstances and when the dead body of a person is found in or brought into Hong Kong An inquest must be held: when a death occurs in official custody, for example in a prison or a detention centre (this inquest must be held with a jury) upon the request of the Secretary for Justice. The Coroner will usually hold an inquest where a person dies in an industrial accident. The Coroner may conduct a pre-inquest review to decide how the inquest may best be carried forward promptly and justly. Pre-inquest reviews do not take place in open court, but inquests are held in open court unless the Coroner directs otherwise. Summonses will be issued to witnesses to attend the inquest to give evidence and to produce documents. Legal representation for a properly interested person is allowed. Properly interested persons may upon payment of fees obtain copies of medical and other technical reports. The Duty Lawyer Scheme also provides legal representation to persons who are at risk of criminal prosecution as a result of giving incriminating evidence in the inquest. In complicated cases, the Coroner may request the Secretary for Justice to assist him to conduct the inquest. What happens at the inquest? At the inquest, the Coroner and the jury should ascertain: the identity of the deceased how, when and where the deceased died the particulars required under the Births and Deaths Registration Ordinance to be registered concerning the death the conclusion as to the death The proceedings of the inquest are as follows: the Coroner opens the inquest witnesses are called and examined by the Coroner's Officer or Government counsel, the jury, family members of the deceased, other interested persons and the Coroner the Coroner sums up the case the Coroner or the jury delivers the finding (Typical examples of findings are set out in Appendix III) By law, the Coroner and jury may not frame a finding in such a way as to determine any question of civil liability. Claims for damages and civil liabilities should be lodged and heard in the civil law courts. Recommendations may be recorded if they are designed to prevent the recurrence of similar fatalities, for instance in cases of deaths in industrial accidents, to prevent other hazards to life disclosed by evidence at the inquest and to bring deficiencies in a system or method of work to the attention of a person who may have power to take appropriate action. The Coroner must adjourn an inquest and refer the matter to the Secretary for Justice where it appears that a criminal offence of murder, manslaughter, infanticide or death by dangerous driving may have been committed by any person. An inquest cannot be resumed until the criminal proceedings are finished. Can anyone ask the Coroner to hold an inquest? Properly interested persons or the Secretary for Justice can apply to the Court of First Instance of the High Court for an inquest to be held into a death including, where an inquest has already been held, a new inquest into that death. The jury who served in the first inquest will also serve as the jury for the re-opened inquest. Certificate of the fact of death The Coroner may also issue a certificate of the fact of death. This is in effect an interim document certifying the fact of death. The certificate of the fact of death can be used, for example, to assist in the transport of a dead body to another country for burial, in particular where the relevant authorities of that country require official documentation that the deceased did not die from an infectious disease. Performance Pledge The Coroner's Court will grant a burial order as soon as possible upon the receipt of an application from the pathologist grant a cremation order grant an exhumation order grant an order to remove dead bodies outside Hong Kong grant a waiver of autopsies grant an autopsy order issue a certificate of fact of death 10 days after receipt of the post-mortem report list an inquest 42 days from the date of the Coroner's decision to hold an inquest

How to contact Coroner's Court? Business Hours Registry and Accounts Office Monday to Friday 9:00 a.m. to 1:00 p.m. 2:00 p.m. to 5:00 p.m. Saturday 9:00 a.m. to 12:00 noon (Closed on Sundays and Public Holidays) Appendix I - The 20 Categories of Reportable Deaths Death the medical cause of which is uncertain Sudden / unattended death, except where a person has been diagnosed before death with a terminal illness Death caused by an accident or injury Death caused by crime Death caused by an anaesthetic or under the influence of a general anaesthetic or which occurred within 24 hours of the administering of anaesthetic Death caused by a surgical operation or within 48 hours after a surgical operation Death caused by an occupational disease or directly / indirectly connected with present or previous occupation Still birth Maternal death Deaths caused by septicaemia with unknown primary cause Suicide Death in official custody Where death occurred during discharge of duty of an officer having statutory powers of arrest or detention Death in the premises of a Government department any public officer of which has statutory powers of arrest or detention Death of certain mental patients (as defined by law) in a hospital or in a mental hospital Death in a private care home Death caused by homicide Death caused by a drug or poison Death caused by ill-treatment, starvation or neglect Death which occurred outside Hong Kong where the body of the person is brought into Hong Kong. Appendix II - Persons Responsible for Reporting Deaths Person Responsible for Reporting Death Report made to Medical practitioners for cases requiring Coroner's consent for organ removal Coroner Police for death in police custody or premises Coroner Department heads receiving a statutory notice of reportable death Coroner Police officers Coroner Registrar of Births and Deaths Coroner Any person (except police) exercising official custody duty Coroner via police Any person in charge of Government department premises Coroner via police Administrator of a hospital or other care facilities Coroner with a copy to Police Appendix III - Examples of Findings which may be made by the Coroner or the Jury Finding Example Natural causes An illness such as cancer or a heart attack Industrial / occupational disease A disease arising from employment, e.g. asbestosis Dependence on drugs / non-dependent abuse of drugs An overdose of narcotic drugs or other medication Want of attention at birth Death as a result of insufficient care being given to a child at birth Suicide Taking one's own life Attempted / self-induced abortion Death resulting from an abortion or an attempt to abort a child Accident Death resulting from an unexpected or untoward event, e.g. a traffic accident or a fall at work Misadventure Where act that is lawful but that has an unexpected consequence has caused the death Self-neglect Death from anorexia nervosa Lawful killing Death as a result of police use of firearms to prevent injury to a person or self defence Unlawful killing Murder or manslaughter Stillbirth The death of a foetus prior to birth Open verdict This finding is made if the evidence is not sufficient for any other finding to be made Appendix IV - Workflow Chart