Whether prosecution can cross-examine hostile witness with his statement recorded by investigating officer who was not authorized to investigate the case?

 Section 162, Criminal P.C., has been enacted for the protection of an accused person. To hold that a statement, made during the course of an investigation started and carried on without proper authority, would not be excluded from the prohibition contained in Section 162, would be to deprive an accused person, for no fault of his, of the protection afforded to him by the Legislature. It would put a premium on illegality and would be opposed to the intention of the Legislature and the policy underlying Section 162, Criminal P. C,

33. In my opinion, therefore, if an investigation is in all other respects an investigation under chap. 14, it would not cease to be an investigation under that Chapter within the meaning of Section 162, Criminal P.C., if it has been undertaken without necessary permission or on the strength of an invalid permission; and that the statements, recorded during the course of such investigation, would be as much hit by the provisions of Section 162, Criminal P.C., as the statements, recorded during the course of an investigation under chap. 14, properly undertaken. If, therefore, I had come to the conclusion that Ex. P-10 Is a statement made by Mr. Ibrahim to Ahibaran Singh during the course of an investigation, I would have had no hesitation in holding that the investigation was under chap. 14, and that Section 162, Criminal P.C., was applicable to the statement.

 IN THE HIGH COURT OF ALLAHABAD

FULL BENCH

Decided On: 29.04.1949

 Shyamlal Sharma  Vs.   King-Emperor

Authored By : Seth, Raghubar Dayal, Wanchoo

Author: Seth, J.

Citation: MANU/UP/0019/1949,AIR 1949 All 483

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Whether a statement made by accused to investigating officer before registration of FIR is hit by S 162 of CRPC?

The appellant is said to have admitted to the sub inspector of police that be was the driver of the autorikshaw. The sub inspector in his deposition has said that the appellant told him like that when he went to the spot for seizing the contraband oil. The lower court relied on that part of the testimony of the sub inspector (P. W. 4) for concluding that the appellant was the driver of the vehicle. Learned Public Prosecutor argued that the said statement made to sub inspector is only an admission and the same could be used as evidence in this case since investigation bad not been commenced during the time when the statement was made by the appellant. If the said statement was made during investigation, is cannot be used for any purpose in view of the embargo contained till Sec. 162 of the Code of Criminal Procedure. So the question to be considered is whether the step taken by the sub inspector in proceeding to the spot was part of investigation in the case.

5. Sec. 2(h) of the Cr. P. C. defines "investigation" as including "all i the proceedings under this Code for the collection of evidence conducted by a police officer". S. 137 of the Code says that, if, from information received "or otherwise" an officer in charge of a police station has reason to suspect the commission of an offence which he is empowered to investigate; he shall forthwith send a report of 'he same to the Magistrate concerned and proceed in person to the spot to investigate the facts and circumstances of the case. If he does not send a report to the Magistrate, that does not mean that his proceeding to the spot is not for investigation. In order to bring such proceedings within the ambit of investigation it is not necessary that a formal registration of the case should have been made before proceeding to the spot. It is enough that he has some information to afford him reason even to suspect the commission of a cognizable offence. Any step taken by him pursuant to such information, towards, detection etc., of the said offence, would be part of investigation under the Code. In Maha Singh v. State (Delhi Administration) ((1976) 5. C. C. 644) the Supreme Court considered a case in which a police officer arranged a raid after recording a complaint, but before sending it for registration of the case. It was held in that case that "the moment the inspector had recorded the complaint with a view to take action to track the offender, whose name was not even known at that stage, and proceeded to achieve the object, visited the locality, questioned the accused, searched his person, seized the note and other documents, turns the entire process into an investigation under the Code." Subba Rao, J. (as he then was) has observed in State of U. P. v. Bhagwant Kiskore (MANU/SC/0066/1963 : AIR. 1964 S. C. 221): "Though ordinarily investigation is undertaken on information received by a police officer, the receipt of information is not a condition precedent for investigation". It was held by a single Judge of the Gujarat High Court (Shelat, J.) in Kantilal v. State (MANU/GJ/0065/1970 : AIR 1970 Guj 218) that the police officer in charge of a police station is empowered to investigate any information received from which he has reason to suspect the commission of an offence which he is empowered to investigate. It has been observed by the learned Judge that "it makes no difference whether that information was reduced to writing or not at that particular stage"

6. I, therefore, conclude that the statement allegedly made by the appellant to the sub inspector of police was during investigation of the case.

7. The embargo contained in Sec. 162 has a wide sweep that no statement made by any person to a police officer in the course of investigation shall be used for any purpose except for the limited purpose mentioned therein. The limited purpose envisaged in the section has no application to the facts of this case. Hence the alleged statement of the appellant to the sub inspector is excluded form legal consideration in this case.

 IN THE HIGH COURT OF KERALA

Crl. A No. 149 of 1985

Decided On: 04.08.1988

C. Chandrababu  Vs.   Sub Inspector of Police

Hon'ble Judges/Coram:

K.T. Thomas, J.

Citation: MANU/KE/0410/1988,1988(3)Crimes757(Ker.), 1988(2)KLJ389

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