Further, in State of Kerala V Babu (1999 (4) SCC 621),
the Apex Court was confronted with the question as to
whether the statement of a witness recorded under S.161
of Cr.P.C. in one particular crime could be used against
that witness in any other trial enquiry or proceedings by
the accused.
11. "The High Court in the impugned
judgment proceeded on the basis that
statement recorded by an investigating
officer in any case which was under
investigation being a statement made
under S, 161 of the Code, the same can be
used for the limited purpose provided under
S.162 of the Code read with S.145 of the
Evidence Act. There can be no quarrel with
this approach of the High Court in regard to
the use of the previous statements of a
witness made in the course of another
investigation being used in the course of
another criminal trial, This is because, as
seen from the observations of this Court in
the case of Tahsildar Singh (supra) the
very object of enactment of S.161 of the
Code and S.145 of the Evidence Act is to
create a right in the accused to make use
of the previous statements of the witnesses
for the purpose of contradiction and for
impeaching the merit of the witness. This
right has not been taken away by S.172 of
the Code and, as noticed above, there is no
prohibition in regard to this right of the
accused either under the Code or under the
Evidence Act.
13............................. 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 S.91 of the Code de
hors the provisions of S.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 S.91(1) of the
Code then the restrictions imposed under
Sub-s.(1) and (3) of S.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 diary, the
court should bear in mind the restrictions
imposed under S.162 of the Code and
S.145 of the Evidence Act because what is
sought to be used from the case diary so
produced, are the previous statements
recorded under S.161 of the Code.
( Emphasis supplied )
16.Having regard to the above binding precedents there
cannot be any doubt that S.162 of the Code does not
prohibit the use of the 161 statement of any witness in
any other proceeding other than the inquiry or trial in
respect of the offence for which the investigation was
conducted. However the Apex Court has cautioned that
the court should bear in mind the restrictions imposed
under S.162 of the Code and S.145 of the Evidence Act
because what is sought to be used from the case diary so
produced, are the previous statements recorded under
S.161 of the Code. In view of the above, I am of the view
that the reasons on the basis of which the application was
dismissed by the Court below cannot be sustained.
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
MR. JUSTICE RAJA VIJAYARAGHAVAN V
26TH DAY OF OCTOBER 2016
Crl.MC.No. 6611 of 2016
SANTHOSH KUMAR Vs STATE OF KERALA,
1. The petitioner is the 1st accused in S.C. No 1485 of 2008
on the file of the Additional Sessions Judge-VII,
Thiruvanathapuram. He along with the other accused
stand indicted for offences punishable under Sections 120
(B), 143, 147, 148, 212, 201 and Section 302 read with
Section 149 of the IPC.
2.Challenge in this petition is directed against the order by
which the application filed under section 311 of the Code
of Criminal Procedure (hereinafter referred to as "the
Code" for brevity) to recall and re-examine PW75 was
dismissed by the learned Sessions Judge.
3.Trial in the aforesaid case had commenced and as many
as 77 witnesses were examined and the prosecution
evidence was closed.
4.PW 5, Amaikanth, was cited to prove Exhibit P2 and P3
mahazars dated 11.4.2011. By these mahazars,
prosecution sought to prove the recovery of the weapons
allegedly used by accused Nos. 2 and 3.
5.According to the defence, PW 5 was a close friend of
deceased Vishnu and he is also a local leader of a
prominent political party. The recovery was stage
managed according to them. To discredit the said
witness, suggestive questions were put while he was in
the box which was promptly denied. According to the
defence, PW 5 and deceased Vishnu had been cited as CW
No. 159 and 160 in the final report in Crime No 51 of
2007, relating to the case involving the murder of Aprani
Krishnakumar. PW75, the investigating officer in the
instant case had investigated that case as well and he had
recorded his 161 statement of PW 5. The said statement,
according to the defence, contained specific reference that
Amaikanth had close connection with deceased Vishnu and
that he was a local leader of CPI ( M) and also the CITU,
the trade Union Wing of CPI ( M).
6.Later, when PW75 was examined, he admitted before
Court that he had conducted the investigation in Crime
No.51 of 2007 and that he had submitted the final report
before Court. The said case had been tried and disposed
of as S.C. No.1540 of 2009 in the year 2013 itself. He
also admitted in his evidence that PW 5 was cited as a
witness along with deceased Vishnu in the said case. It
appears that when the said witness was questioned, the
defence was not in possession of the previous statement
of PW5 in S.C. No.1540 of 2009.
7.Immediately thereafter, the defence filed an application to
recall PW 5, which was allowed by the Court below. This
was after obtaining the copy of the final report In Crime
No.51 of 2007 of the Petta Police Station by filing an
application before this Court where Crl.Appeal No.1250 of
2003 challenging the conviction and sentence of one of
the accused was pending.
8.PW 5 was further cross-examined and in the course of
examination, the witness admitted that he was a witness
in the earlier case but was not examined during the trial.
He was cross-examined with reference to its previous
statement in Crime No.51 of 2007 of Petta Police Station.
When he denied, an attempt was made by the defence
counsel to confront him with his previous statement in
writing under section 145 of the Evidence Act. The said
procedure was objected to by the learned Public
Prosecutor. However, pointed questions with reference to
his previous statement in Crime No.51 of 2007 was put to
the witness which were emphatically denied. Thereafter,
the petitioner filed an application for recalling PW75 to
prove the certified copy of the final report in Crime No.51
of 2007 of the Petta Police Station which was tried as
S.C.No.1540 of 2009 and was disposed. The attempt of
the defence was to prove the fact that PW75 had recorded
the statement of PW5 under section 161 of the Code and
to discredit him with his previous statement. The said
application was dismissed by the impugned order.
9.I have heard Sri B Raman Pillai, the learned Senior
Counsel appearing for the petitioner as well as Sri K.V.
Sohan the learned State Attorney.
10.The learned Senior Counsel referring to the decision of
this Court in Surendran V State of Kerala (1993 (2) KLT
674) and of the Apex Court in State of Kerala V Babu
(1999 (4) SCC 621) contended that the reasons given by
the Court below to reject the application cannot be
sustained. According to the learned Counsel Section 162
of the Code does not prohibit the use of statement of
witness recorded in any other proceeding other than the
enquiry or trial in respect of the offence for which the
investigation was conducted. It is further submitted that
the only objective of the defence was to challenge the
credibility of PW 5 by bringing on record that he was lying
on a material point. It is further argued that the learned
Sessions Judge had permitted the recalling of PW 5 for
further examination after being convinced about the
nature of the contradictory statements made by him in the
statement recorded under Section 161 of the Code in
Crime No 51 of 2007 of the Petta Police Station. While the
witness was cross examined, he was confronted with his
previous statement in writing. He had gone to the extent
of stating that he had not given any statement to PW 75
under section 161 of the Code. Sufficient materials
relating to his connection with the deceased Vishnu and
his party affiliation was brought out with reference to his
previous statement while he was cross-examined.
According to the counsel, the only course open to the
defence is to recall the Investigating officer who had
recorded his previous statement in the other crime and
prove the said aspects. The learned Senior Counsel would
further submit referring to the deposition of PW 75 , that
the observation of the Court below that while the
Investigating officer was cross examined, no question was
put to him in connection with the statement given by PW 5
in Crime No 51 of 2007 of Petta Police Station is clearly
incorrect. Finally it is submitted that the denial of an
opportunity to the defence to recall PW 75 for proving the
aforesaid aspect had occasioned in miscarriage of justice.
11.Per Contra, the learned State Attorney would take this
Court through the sequence of events and would submit
that the attempt is only to protract the trial proceedings.
It is pointed out that when PW 5 was recalled, the defence
was not in possession of the certified copy of the 161
statement of PW 5 in Crime No 51 of 2007. The witness
was not confronted with his previous statement in writing
and in view of the above, no purpose would be served in
recalling the Investigating Officer. It is further submitted
that the trial in Crime No. 51 of 2007 has already been
completed and Appeal is pending before the Court. It is
further submitted that the learned Additional Sessions
Judge was justified in dismissing the application on the
ground that the further examination of PW 75 was not
essential for arriving at a just decision.
12.Have considered the rival submissions and have gone
through the depositions of PW 5 and PW 75. I have also
anxiously gone through the impugned order.
13.The first reason given by the Court below to disallow the
application is that the defence had not produced the
certified copy of the 161 statement of the witness when
PW 5 was recalled and cross-examined. It is evident from
the deposition of PW5, that the defence had put specific
questions by inviting his attention to the previous
statement in Crime No.51 of 2007 of the Petta Police
Station. I am also not able to accept the finding of the
Court below that no questions were put to PW 75 in
connection with Crime No.51 of 2007. The deposition is
replete with questions in connection with the said crime.
All that the defence wanted to bring on record was that
PW 5 was also a witness in the previous case and that he
had given a statement touching his affiliation with a
political party and also that he had acquaintance with the
deceased Vishnu. The right of the cross examiner could
not have been denied on the ground that the said case
had no connection with the present case.
14.In Surendran V State of Kerala (1993 (2) KLT 674),
the question whether 161 statement recorded by the
Police in another case could be used for the purpose of
cross examining one of the prosecution witness had come
up for consideration. It was held as follows : -
"6. S.161 of the Code empowers a police
officer, who investigates the case, to examine
any person supposed to be acquainted with the
facts and circumstances of the case. The police
officer is also given the option to reduce into
writing what the person tells him. S.162 of the
Code which contains the prohibition regarding
use of such statements provides that no such
statement shall "be used for any purpose, save
as hereinafter provided, at any inquiry or trial
in respect of any offence under investigation at
the time when such statement was made".
From the sweep of S.162 of the Code
legislature protected the right of a cross
examiner to use the statement for contradicting
the witness who made such statement. Of
course, the right of the accused to use it for
contradiction is unrestricted while prosecution
can use it for contradiction only if the court
permits. Even this can be done only when a
witness is called for the prosecution and not
otherwise.
7. The words "save as hereinafter provided" in
S.162 of the Code have been used in
parenthetical form. If we read the main body of
the section without those words, it would mean
that the statement made by any person to a
police officer during investigation shall not be
used for any purpose "at any inquiry or trial in
respect of any offence under investigation at
the time when such statement was made". An
attempt is made to interpret the words "be
used for any purpose" as indicative that the
sweep of the ban is plenary. But a close reading
of the section would reveal that the ban is
confined to the use of the statement only at
any inquiry or trial in respect of any offence
under investigation at the time when such
statement was made. In other words, S.162 of
the Code does not prohibit the use of such
statement in any other proceeding (other than
the inquiry or trial in respect of the offence for
which the investigation was conducted). Thus,
even in the limited application of the ban, one
exception which Parliament advisedly provided
is to safeguard the right of the accused to
contradict a prosecution witness and right of
the prosecution also in certain cases under
certain conditions.
8. The right to cross examine a witness with
reference to his previous statement can be
traced to S.145, 146 and 155(3) of the Indian
Evidence Act. S.145 says that a witness may be
cross examined as to previous statements
made by him in writing or reduced to writing.
This is the general right of a cross examiner.
The only restriction provided is that the
previous statement must be relevant to the
matters in question. Section also prescribes the
procedure to be followed if the cross examiner
wants to contradict the witness as to the
previous statements. S.146 empowers a cross
examiner to put any question to test the
veracity of the witness. Of course, the vast
scope covered by S.146 is subject to the court's
power to control such questions as provided in
S.148 to 152 of the Evidence Act. Subject to
such control the cross examiner is entitled to
put any question to test the veracity of the
testimony of the witness. S.155(3) of the
Evidence Act says that any former statement of
a witness which is inconsistent with his
evidence can be proved for impeaching the
credit of the witness. S.155(3) of the Evidence
Act applies to any previous statement whether
oral or in writing. But S.145 applies only to
previous statement in writing. Thus, S.145, 146
and 155(3) of the Evidence Act are
complementary to each other. When they are
read together, a cross examiner cannot be
restricted from putting questions except to the
extent indicated in S.148 to 152 of the
Evidence Act. This general right of the cross
examiner has to be borne in mind when
deciding the present question.
9. S.162 of the Code has been inserted for
protecting the interest of the accused (vide
Tahsildar Singh v. State of U.P., AIR 1959 SC
1012). Hence that which was intended to
provide as a protection to the accused cannot,
by interpretation, be made a handicap to the
accused. S.162 is never intended to curb the
right of the accused to contradict a witness with
his previous statement.
10. The upshot of the above discussion is that
the right of accused to cross examine the
witness by contradicting him with reference to
any previous statements made by that witness
has not been trammelled by S.162 of the Code.
Secondly, the ban contained in the section is
applicable only where such statement is sought
to be used at any inquiry or trial in respect of
any offence under investigation at the time
when such statement was made."
15.Further, in State of Kerala V Babu (1999 (4) SCC 621),
the Apex Court was confronted with the question as to
whether the statement of a witness recorded under S.161
of Cr.P.C. in one particular crime could be used against
that witness in any other trial enquiry or proceedings by
the accused.
11. "The High Court in the impugned
judgment proceeded on the basis that
statement recorded by an investigating
officer in any case which was under
investigation being a statement made
under S, 161 of the Code, the same can be
used for the limited purpose provided under
S.162 of the Code read with S.145 of the
Evidence Act. There can be no quarrel with
this approach of the High Court in regard to
the use of the previous statements of a
witness made in the course of another
investigation being used in the course of
another criminal trial, This is because, as
seen from the observations of this Court in
the case of Tahsildar Singh (supra) the
very object of enactment of S.161 of the
Code and S.145 of the Evidence Act is to
create a right in the accused to make use
of the previous statements of the witnesses
for the purpose of contradiction and for
impeaching the merit of the witness. This
right has not been taken away by S.172 of
the Code and, as noticed above, there is no
prohibition in regard to this right of the
accused either under the Code or under the
Evidence Act.
13............................. 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 S.91 of the Code de
hors the provisions of S.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 S.91(1) of the
Code then the restrictions imposed under
Sub-s.(1) and (3) of S.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 diary, the
court should bear in mind the restrictions
imposed under S.162 of the Code and
S.145 of the Evidence Act because what is
sought to be used from the case diary so
produced, are the previous statements
recorded under S.161 of the Code.
( Emphasis supplied )
16.Having regard to the above binding precedents there
cannot be any doubt that S.162 of the Code does not
prohibit the use of the 161 statement of any witness in
any other proceeding other than the inquiry or trial in
respect of the offence for which the investigation was
conducted. However the Apex Court has cautioned that
the court should bear in mind the restrictions imposed
under S.162 of the Code and S.145 of the Evidence Act
because what is sought to be used from the case diary so
produced, are the previous statements recorded under
S.161 of the Code. In view of the above, I am of the view
that the reasons on the basis of which the application was
dismissed by the Court below cannot be sustained.
17.In so far as the powers of the trial Court under Section
311 of the Code is concerned, the Apex Court has issued
several guidelines in AG V Shiv Kumar Yadav and
Another [2016 (2) SCC 402] and in State of Hariyana
v. Ram Mehar and Others [2015 (8) SCALE 192]. In
Ram Mehar (supra) it was held on facts that the
approach can be liberal but that does not mean that
liberal approach shall be the rule and all other parameters
become exception. It was further held that the court
should be conscious of the position that, after all, the trial
is basically for the prisoners and the court should afford
an opportunity to them in the fairest manner possible. In
that parity of reasoning, it would be safe to err in favour
of the accused getting an opportunity rather than
protecting the prosecution against possible prejudice at
the cost of the accused. It was finally held that the power
under Section 311 of the Code must be invoked only in
order to meet the ends of justice for strong and valid
reasons and the same must be exercised with care,
caution and circumspection. The courts were directed to
bear in mind that fair trial entails the interest of the
accused, the victim and the society and therefore the
grant of fair and proper opportunities to the persons
concerned must be ensured being a constitutional goal, as
well as a human right.
18.After having anxiously considered the relevant facts and
circumstances and after considering the reasons
canvassed by the petitioner for recalling the said witness,
I am of the view that an opportunity is to be granted to
the accused to secure the interest of justice.
The application will stand allowed. The learned Additional
Sessions Judge is directed to recall PW 75 and to permit
the accused to cross examine the said witness. The
proceedings shall be expedited and the court below shall
endeavor to complete the above proceeding within two
weeks from the date of receipt of a copy of this order.
The petition is disposed of.
Print Page
the Apex Court was confronted with the question as to
whether the statement of a witness recorded under S.161
of Cr.P.C. in one particular crime could be used against
that witness in any other trial enquiry or proceedings by
the accused.
11. "The High Court in the impugned
judgment proceeded on the basis that
statement recorded by an investigating
officer in any case which was under
investigation being a statement made
under S, 161 of the Code, the same can be
used for the limited purpose provided under
S.162 of the Code read with S.145 of the
Evidence Act. There can be no quarrel with
this approach of the High Court in regard to
the use of the previous statements of a
witness made in the course of another
investigation being used in the course of
another criminal trial, This is because, as
seen from the observations of this Court in
the case of Tahsildar Singh (supra) the
very object of enactment of S.161 of the
Code and S.145 of the Evidence Act is to
create a right in the accused to make use
of the previous statements of the witnesses
for the purpose of contradiction and for
impeaching the merit of the witness. This
right has not been taken away by S.172 of
the Code and, as noticed above, there is no
prohibition in regard to this right of the
accused either under the Code or under the
Evidence Act.
13............................. 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 S.91 of the Code de
hors the provisions of S.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 S.91(1) of the
Code then the restrictions imposed under
Sub-s.(1) and (3) of S.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 diary, the
court should bear in mind the restrictions
imposed under S.162 of the Code and
S.145 of the Evidence Act because what is
sought to be used from the case diary so
produced, are the previous statements
recorded under S.161 of the Code.
( Emphasis supplied )
16.Having regard to the above binding precedents there
cannot be any doubt that S.162 of the Code does not
prohibit the use of the 161 statement of any witness in
any other proceeding other than the inquiry or trial in
respect of the offence for which the investigation was
conducted. However the Apex Court has cautioned that
the court should bear in mind the restrictions imposed
under S.162 of the Code and S.145 of the Evidence Act
because what is sought to be used from the case diary so
produced, are the previous statements recorded under
S.161 of the Code. In view of the above, I am of the view
that the reasons on the basis of which the application was
dismissed by the Court below cannot be sustained.
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
MR. JUSTICE RAJA VIJAYARAGHAVAN V
26TH DAY OF OCTOBER 2016
Crl.MC.No. 6611 of 2016
SANTHOSH KUMAR Vs STATE OF KERALA,
1. The petitioner is the 1st accused in S.C. No 1485 of 2008
on the file of the Additional Sessions Judge-VII,
Thiruvanathapuram. He along with the other accused
stand indicted for offences punishable under Sections 120
(B), 143, 147, 148, 212, 201 and Section 302 read with
Section 149 of the IPC.
2.Challenge in this petition is directed against the order by
which the application filed under section 311 of the Code
of Criminal Procedure (hereinafter referred to as "the
Code" for brevity) to recall and re-examine PW75 was
dismissed by the learned Sessions Judge.
3.Trial in the aforesaid case had commenced and as many
as 77 witnesses were examined and the prosecution
evidence was closed.
4.PW 5, Amaikanth, was cited to prove Exhibit P2 and P3
mahazars dated 11.4.2011. By these mahazars,
prosecution sought to prove the recovery of the weapons
allegedly used by accused Nos. 2 and 3.
5.According to the defence, PW 5 was a close friend of
deceased Vishnu and he is also a local leader of a
prominent political party. The recovery was stage
managed according to them. To discredit the said
witness, suggestive questions were put while he was in
the box which was promptly denied. According to the
defence, PW 5 and deceased Vishnu had been cited as CW
No. 159 and 160 in the final report in Crime No 51 of
2007, relating to the case involving the murder of Aprani
Krishnakumar. PW75, the investigating officer in the
instant case had investigated that case as well and he had
recorded his 161 statement of PW 5. The said statement,
according to the defence, contained specific reference that
Amaikanth had close connection with deceased Vishnu and
that he was a local leader of CPI ( M) and also the CITU,
the trade Union Wing of CPI ( M).
6.Later, when PW75 was examined, he admitted before
Court that he had conducted the investigation in Crime
No.51 of 2007 and that he had submitted the final report
before Court. The said case had been tried and disposed
of as S.C. No.1540 of 2009 in the year 2013 itself. He
also admitted in his evidence that PW 5 was cited as a
witness along with deceased Vishnu in the said case. It
appears that when the said witness was questioned, the
defence was not in possession of the previous statement
of PW5 in S.C. No.1540 of 2009.
7.Immediately thereafter, the defence filed an application to
recall PW 5, which was allowed by the Court below. This
was after obtaining the copy of the final report In Crime
No.51 of 2007 of the Petta Police Station by filing an
application before this Court where Crl.Appeal No.1250 of
2003 challenging the conviction and sentence of one of
the accused was pending.
8.PW 5 was further cross-examined and in the course of
examination, the witness admitted that he was a witness
in the earlier case but was not examined during the trial.
He was cross-examined with reference to its previous
statement in Crime No.51 of 2007 of Petta Police Station.
When he denied, an attempt was made by the defence
counsel to confront him with his previous statement in
writing under section 145 of the Evidence Act. The said
procedure was objected to by the learned Public
Prosecutor. However, pointed questions with reference to
his previous statement in Crime No.51 of 2007 was put to
the witness which were emphatically denied. Thereafter,
the petitioner filed an application for recalling PW75 to
prove the certified copy of the final report in Crime No.51
of 2007 of the Petta Police Station which was tried as
S.C.No.1540 of 2009 and was disposed. The attempt of
the defence was to prove the fact that PW75 had recorded
the statement of PW5 under section 161 of the Code and
to discredit him with his previous statement. The said
application was dismissed by the impugned order.
9.I have heard Sri B Raman Pillai, the learned Senior
Counsel appearing for the petitioner as well as Sri K.V.
Sohan the learned State Attorney.
10.The learned Senior Counsel referring to the decision of
this Court in Surendran V State of Kerala (1993 (2) KLT
674) and of the Apex Court in State of Kerala V Babu
(1999 (4) SCC 621) contended that the reasons given by
the Court below to reject the application cannot be
sustained. According to the learned Counsel Section 162
of the Code does not prohibit the use of statement of
witness recorded in any other proceeding other than the
enquiry or trial in respect of the offence for which the
investigation was conducted. It is further submitted that
the only objective of the defence was to challenge the
credibility of PW 5 by bringing on record that he was lying
on a material point. It is further argued that the learned
Sessions Judge had permitted the recalling of PW 5 for
further examination after being convinced about the
nature of the contradictory statements made by him in the
statement recorded under Section 161 of the Code in
Crime No 51 of 2007 of the Petta Police Station. While the
witness was cross examined, he was confronted with his
previous statement in writing. He had gone to the extent
of stating that he had not given any statement to PW 75
under section 161 of the Code. Sufficient materials
relating to his connection with the deceased Vishnu and
his party affiliation was brought out with reference to his
previous statement while he was cross-examined.
According to the counsel, the only course open to the
defence is to recall the Investigating officer who had
recorded his previous statement in the other crime and
prove the said aspects. The learned Senior Counsel would
further submit referring to the deposition of PW 75 , that
the observation of the Court below that while the
Investigating officer was cross examined, no question was
put to him in connection with the statement given by PW 5
in Crime No 51 of 2007 of Petta Police Station is clearly
incorrect. Finally it is submitted that the denial of an
opportunity to the defence to recall PW 75 for proving the
aforesaid aspect had occasioned in miscarriage of justice.
11.Per Contra, the learned State Attorney would take this
Court through the sequence of events and would submit
that the attempt is only to protract the trial proceedings.
It is pointed out that when PW 5 was recalled, the defence
was not in possession of the certified copy of the 161
statement of PW 5 in Crime No 51 of 2007. The witness
was not confronted with his previous statement in writing
and in view of the above, no purpose would be served in
recalling the Investigating Officer. It is further submitted
that the trial in Crime No. 51 of 2007 has already been
completed and Appeal is pending before the Court. It is
further submitted that the learned Additional Sessions
Judge was justified in dismissing the application on the
ground that the further examination of PW 75 was not
essential for arriving at a just decision.
12.Have considered the rival submissions and have gone
through the depositions of PW 5 and PW 75. I have also
anxiously gone through the impugned order.
13.The first reason given by the Court below to disallow the
application is that the defence had not produced the
certified copy of the 161 statement of the witness when
PW 5 was recalled and cross-examined. It is evident from
the deposition of PW5, that the defence had put specific
questions by inviting his attention to the previous
statement in Crime No.51 of 2007 of the Petta Police
Station. I am also not able to accept the finding of the
Court below that no questions were put to PW 75 in
connection with Crime No.51 of 2007. The deposition is
replete with questions in connection with the said crime.
All that the defence wanted to bring on record was that
PW 5 was also a witness in the previous case and that he
had given a statement touching his affiliation with a
political party and also that he had acquaintance with the
deceased Vishnu. The right of the cross examiner could
not have been denied on the ground that the said case
had no connection with the present case.
14.In Surendran V State of Kerala (1993 (2) KLT 674),
the question whether 161 statement recorded by the
Police in another case could be used for the purpose of
cross examining one of the prosecution witness had come
up for consideration. It was held as follows : -
"6. S.161 of the Code empowers a police
officer, who investigates the case, to examine
any person supposed to be acquainted with the
facts and circumstances of the case. The police
officer is also given the option to reduce into
writing what the person tells him. S.162 of the
Code which contains the prohibition regarding
use of such statements provides that no such
statement shall "be used for any purpose, save
as hereinafter provided, at any inquiry or trial
in respect of any offence under investigation at
the time when such statement was made".
From the sweep of S.162 of the Code
legislature protected the right of a cross
examiner to use the statement for contradicting
the witness who made such statement. Of
course, the right of the accused to use it for
contradiction is unrestricted while prosecution
can use it for contradiction only if the court
permits. Even this can be done only when a
witness is called for the prosecution and not
otherwise.
7. The words "save as hereinafter provided" in
S.162 of the Code have been used in
parenthetical form. If we read the main body of
the section without those words, it would mean
that the statement made by any person to a
police officer during investigation shall not be
used for any purpose "at any inquiry or trial in
respect of any offence under investigation at
the time when such statement was made". An
attempt is made to interpret the words "be
used for any purpose" as indicative that the
sweep of the ban is plenary. But a close reading
of the section would reveal that the ban is
confined to the use of the statement only at
any inquiry or trial in respect of any offence
under investigation at the time when such
statement was made. In other words, S.162 of
the Code does not prohibit the use of such
statement in any other proceeding (other than
the inquiry or trial in respect of the offence for
which the investigation was conducted). Thus,
even in the limited application of the ban, one
exception which Parliament advisedly provided
is to safeguard the right of the accused to
contradict a prosecution witness and right of
the prosecution also in certain cases under
certain conditions.
8. The right to cross examine a witness with
reference to his previous statement can be
traced to S.145, 146 and 155(3) of the Indian
Evidence Act. S.145 says that a witness may be
cross examined as to previous statements
made by him in writing or reduced to writing.
This is the general right of a cross examiner.
The only restriction provided is that the
previous statement must be relevant to the
matters in question. Section also prescribes the
procedure to be followed if the cross examiner
wants to contradict the witness as to the
previous statements. S.146 empowers a cross
examiner to put any question to test the
veracity of the witness. Of course, the vast
scope covered by S.146 is subject to the court's
power to control such questions as provided in
S.148 to 152 of the Evidence Act. Subject to
such control the cross examiner is entitled to
put any question to test the veracity of the
testimony of the witness. S.155(3) of the
Evidence Act says that any former statement of
a witness which is inconsistent with his
evidence can be proved for impeaching the
credit of the witness. S.155(3) of the Evidence
Act applies to any previous statement whether
oral or in writing. But S.145 applies only to
previous statement in writing. Thus, S.145, 146
and 155(3) of the Evidence Act are
complementary to each other. When they are
read together, a cross examiner cannot be
restricted from putting questions except to the
extent indicated in S.148 to 152 of the
Evidence Act. This general right of the cross
examiner has to be borne in mind when
deciding the present question.
9. S.162 of the Code has been inserted for
protecting the interest of the accused (vide
Tahsildar Singh v. State of U.P., AIR 1959 SC
1012). Hence that which was intended to
provide as a protection to the accused cannot,
by interpretation, be made a handicap to the
accused. S.162 is never intended to curb the
right of the accused to contradict a witness with
his previous statement.
10. The upshot of the above discussion is that
the right of accused to cross examine the
witness by contradicting him with reference to
any previous statements made by that witness
has not been trammelled by S.162 of the Code.
Secondly, the ban contained in the section is
applicable only where such statement is sought
to be used at any inquiry or trial in respect of
any offence under investigation at the time
when such statement was made."
15.Further, in State of Kerala V Babu (1999 (4) SCC 621),
the Apex Court was confronted with the question as to
whether the statement of a witness recorded under S.161
of Cr.P.C. in one particular crime could be used against
that witness in any other trial enquiry or proceedings by
the accused.
11. "The High Court in the impugned
judgment proceeded on the basis that
statement recorded by an investigating
officer in any case which was under
investigation being a statement made
under S, 161 of the Code, the same can be
used for the limited purpose provided under
S.162 of the Code read with S.145 of the
Evidence Act. There can be no quarrel with
this approach of the High Court in regard to
the use of the previous statements of a
witness made in the course of another
investigation being used in the course of
another criminal trial, This is because, as
seen from the observations of this Court in
the case of Tahsildar Singh (supra) the
very object of enactment of S.161 of the
Code and S.145 of the Evidence Act is to
create a right in the accused to make use
of the previous statements of the witnesses
for the purpose of contradiction and for
impeaching the merit of the witness. This
right has not been taken away by S.172 of
the Code and, as noticed above, there is no
prohibition in regard to this right of the
accused either under the Code or under the
Evidence Act.
13............................. 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 S.91 of the Code de
hors the provisions of S.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 S.91(1) of the
Code then the restrictions imposed under
Sub-s.(1) and (3) of S.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 diary, the
court should bear in mind the restrictions
imposed under S.162 of the Code and
S.145 of the Evidence Act because what is
sought to be used from the case diary so
produced, are the previous statements
recorded under S.161 of the Code.
( Emphasis supplied )
16.Having regard to the above binding precedents there
cannot be any doubt that S.162 of the Code does not
prohibit the use of the 161 statement of any witness in
any other proceeding other than the inquiry or trial in
respect of the offence for which the investigation was
conducted. However the Apex Court has cautioned that
the court should bear in mind the restrictions imposed
under S.162 of the Code and S.145 of the Evidence Act
because what is sought to be used from the case diary so
produced, are the previous statements recorded under
S.161 of the Code. In view of the above, I am of the view
that the reasons on the basis of which the application was
dismissed by the Court below cannot be sustained.
17.In so far as the powers of the trial Court under Section
311 of the Code is concerned, the Apex Court has issued
several guidelines in AG V Shiv Kumar Yadav and
Another [2016 (2) SCC 402] and in State of Hariyana
v. Ram Mehar and Others [2015 (8) SCALE 192]. In
Ram Mehar (supra) it was held on facts that the
approach can be liberal but that does not mean that
liberal approach shall be the rule and all other parameters
become exception. It was further held that the court
should be conscious of the position that, after all, the trial
is basically for the prisoners and the court should afford
an opportunity to them in the fairest manner possible. In
that parity of reasoning, it would be safe to err in favour
of the accused getting an opportunity rather than
protecting the prosecution against possible prejudice at
the cost of the accused. It was finally held that the power
under Section 311 of the Code must be invoked only in
order to meet the ends of justice for strong and valid
reasons and the same must be exercised with care,
caution and circumspection. The courts were directed to
bear in mind that fair trial entails the interest of the
accused, the victim and the society and therefore the
grant of fair and proper opportunities to the persons
concerned must be ensured being a constitutional goal, as
well as a human right.
18.After having anxiously considered the relevant facts and
circumstances and after considering the reasons
canvassed by the petitioner for recalling the said witness,
I am of the view that an opportunity is to be granted to
the accused to secure the interest of justice.
The application will stand allowed. The learned Additional
Sessions Judge is directed to recall PW 75 and to permit
the accused to cross examine the said witness. The
proceedings shall be expedited and the court below shall
endeavor to complete the above proceeding within two
weeks from the date of receipt of a copy of this order.
The petition is disposed of.
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