Local Inspection by Magistrate:
Considerations for local inspection of the place of offence by Magistrate himself:
Section 310 of Criminal Procedure Code 1973 (corresponding to Section 539 of Criminal Procedure Code) provides about inspection is as under:
310. Local inspection. (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.
Scope of power of local inspection:
If a Magistrate makes use of knowledge derived from a local inspection without affording the accused an opportunity to cross-examine or to explain the points against him, he acts with material irregularity sufficient to vitiate the trial. It was also held that a local inspection of the Magistrate is permitted for the purpose of properly appreciating the evidence in this case and cannot take the place of evidence itself. [Source: Tirkah v. Nanak AIR 1927 All. 350]
In another case the Magistrate visited the spot on the evening and came to the conclusion that there was sufficient light to enable anybody to mark closely the features of a stranger. The High Court held that the learned Magistrate assumed that the condition of the light and atmosphere were the same on the night that he went to the spot as they were at the time of the occurrence. It was held that the Magistrate had gone beyond the scope of Section 539(b) and result of such inspection could not be made the basis of conviction. [Source: Sheik Badasah v. Emperor, (1939) 40 Crl. Law Journal 624]
The only purpose of local inspection being to properly appreciate the evidence given at the trial and it is only reasonable that the local inspection should, as a rule, come after all the evidence is recorded…. Even that should be resorted to very sparingly, the Court taking special precautions to prevent itself becoming a witness unconsciously. On some occasions, it is practically impossible for the Court to make a local inspection, and not import new materials collected by it. The moment the Court collects new materials it becomes a witness, and as it cannot cross-examine itself, it cannot try the case.
[Source: Dwaraka Prasad v. Ram Nath Modi, AIR 1951 Vindhyapradesh 1]
Code provides for the Judge making a local inspection himself. That inspection can be used by him for properly appreciating the evidence in the case and for no other purpose. It cannot be used for preparation of the background for appreciating the evidence of the witnesses because preparation of the background has to be made by the parties themselves by letting in evidence forthat purpose and the Judge is not expected to supply that lacuna in evidence. Preparation of the background to appreciate the evidence of witnesses is not the same as “properly appreciating the evidence’contemplated by the Section. …If the impressions gained by the Judge on controversial matters are allowed to get in without being tested by cross-examination there is the likelihood of miscarriage of justice resulting from it.
[Source: State of Kerala v. Chandran 1973 KLT 625 DB: 1974 Crl. Law Journal 52.]
In Pritam Singh v. State of Punjab a three Judge Bench of the Supreme Court held that a Magistrate is not entitled to allow his views or observations to take the place of evidence because such view or observation cannot be tested by cross-examination.
A local inspection may be made for the purpose of properly appreciating the evidence given during the trial. The magistrate should not, in making the local inspection, do any thing which would reduce him to the position of a witness.
He has repeatedly referred in his judgment to a sketch prepared by him. That sketch does not appear to have been put into evidence at all; but the learned Magistrate has not hesitated to make liberal use of that sketch. It does not appear to have been in the mind of the learned Magistrate that the local inspection should have been confined only to the purpose of properly appreciating the evidence on record.
What Section 539-B contemplates is the local inspection of the topography of the place in which the offence was alleged to have been committed or its local peculiarities for the purpose of properly appreciating the evidence which was already on record.
[Source: State of Uttar Pradesh v. Het Ram and Ors. AIR 1976 SC 2124]
Normally a Court is not entitled to make a local inspection and even if such an inspection is made, it can never take the place of evidence or proof but is really meant for appreciating the position at the spot. In the present case the Sessions Judge by making a local inspection converted himself into a witness in order to draw full support to the defence case by what he may have seen. By doing so the Sessions Judge exceeded his jurisdiction.
…the local inspection envisaged under Section 310 Cr.P.C. is for the purpose of properly appreciating the evidence already recorded during the trial. Memorandum of spot inspection recorded by the trial Judge has to be appreciated in conjunction with the evidence already recorded. Any omission and/or commission in the memorandum recorded by the trial Judge by itself would not constitute material irregularity, which would vitiate the prosecution case.
[Source: State of H.P. v. Mast Ram (Supreme Court of India)]
The Magistrate has power to conduct a local inspection that can only be for the purpose of appreciating the evidence on record and that shall not be done in a manner so as to reduce the Magistrate as a witness.