Thursday, 11 May 2017

Whether police statement of witness recorded in one case can be used in other case?

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.

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