Admissibility of recorded statements without examining the makers

In Bangladesh's criminal justice system, the admissibility of recorded materials e.g., First Information Reports (FIR), witness statements, confessions, medical reports, and post-mortem findings without examining their preparers is a nuanced legal issue shaped by statutory provisions, judicial interpretations, and procedural safeguards. The governing legal framework primarily comprises the Evidence Act, 1872, and the Code of Criminal Procedure (CrPC), 1898. Courts must balance the importance of admitting crucial evidence, with the accused's right to cross-examination, ensuring compliance with both substantive and procedural requirements.

At the heart of this debate lies a fundamental principle of criminal procedural law- the burden squarely rests on the prosecution to produce all material witnesses, including the officers who recorded statements or prepared reports, before the court. Failure to do so not only weakens the evidentiary foundation of the prosecution's case and may, in appropriate circumstances, result in the acquittal of the accused. The following are instances where such statements may be admitted without examining their maker/s and the conditions to be fulfilled.

To begin with, in General Registrar (GR) cases, which usually commences with the filing of the FIR at the police station, the absence of the informant (ejaharkari) does not inherently affect the admissibility of the ejahar. The condition is that it is filed by a public servant in accordance with legal procedure. Notably, FIRs are not substantive evidence, and they may be used only for corroboration or contradiction under sections 145 and 157 of the Evidence Act, 1872. Similarly, under section 476 of the CrPC, complaints initiated by a Presiding Officer (PO) regarding offences such as perjury or fabrication of evidence are deemed official acts, and the PO's personal appearance as a witness during the trial is not required.

Where it is shown that genuine efforts were made to produce the recording officer, the document appears lawful and authentic, is corroborated by other credible evidence, and the defence suffers no material prejudice, the court may admit such documents in the interest of justice and procedural efficiency without direct examination of its maker.

In case of a confessional statement under Section 164 of the CrPC, the Court may presume its genuineness, if it is found to be duly recorded in compliance with sections 164 and 364 of the CrPC, rules 74, 75, and 79 of the Criminal Rules and Orders, 2009, and conforms to Form No. (M) 84. At the same time, it must adhere to the requirements of sections 24 to 30 of the Evidence Act, 1872.  In such circumstances, examination of the recording Magistrate is not mandatory, and the confessional statement may be accepted as genuine and admissible evidence.

On the other hand, sections 509, 509A, and 510 of the CrPC allow courts to admit medical, post-mortem, and chemical examination reports without requiring the testimony of their authors, when their authors are deceased or unavailable. Such documents are considered public records under section 74(1) of the Evidence Act, 1872 and may be proved under section 78 of the same, subject to compliance with procedural safeguards. Apart from these, there are well-established exceptions where the presence of the recording officer is not mandatory e.g., dying declarations, statements against interest, business records exception, res gestae, public documents, cases where the maker is deceased, missing, or otherwise unavailable.

Contrarily, the law obliges examination of a witness in some instances. Section 60 of the Evidence Act, 1872, for example, excludes hearsay evidence unless it falls under a recognised exception or the declarant is available for cross-examination. This hearsay rule is particularly vital in criminal proceedings where the accused's right to confrontation is protected. Additionally, the prosecution must satisfy the requirement of authentication (that the documentary evidence is genuine and accurate), which is often done through the testimony of the recording officer. On the other hand, section 145 of the Evidence Act, 1872 allows cross-examining the maker of the statement made to the police. However, the maker is required to be examined as a witness first. Similarly, sections 241, 241A, and 265B of the CrPC, along with section 136 of the Evidence Act, forms the basis for the accused's right to cross-examine the maker of the document- thus invoking careful judicial discretion. This framework ensures compliance with the constitutional guarantee of a fair trial under Article 35(3) of the Constitution of Bangladesh.

It is observed that despite their pivotal role in documenting critical evidence, the production of recording officers such as Magistrates, Medical Officers, Investigating Officers, and Chemical Examiners, often presents practical and persistent logistical and administrative difficulties. With increasing caseloads and escalating procedural costs, courts are frequently required to exercise judicial discretion in determining whether such documentary evidence may be admitted in the absence of the direct examination of its authors.

Where it is shown that genuine efforts were made to produce the recording officer, the document appears lawful and authentic, is corroborated by other credible evidence, and the defence suffers no material prejudice, the court may admit such documents in the interest of justice and procedural efficiency without direct examination of its maker. This needs to be allowed considering the practicalities of the modern time and society.

The author is a Senior Assistant Judge, Bangladesh Judicial Service.