Contradictions Are Not Evidence: Supreme Court Reiterates the Limits of Sections 161, 162,164 of CrPC and Section 145 Evidence Act

⚖️ “In criminal law, contradictions may bend credibility, but they cannot build conviction.”

“Contradictions weaken, but never convict.”

One of the most frequent confusions in criminal trials is the evidentiary value of police statements and recorded contradictions. In its recent decision in Mahabir & Ors. v. State of Haryana (Criminal Appeal Nos. 5560–5561 of 2024, decided 29 January 2025, MANU/SC/0122/2025), the Supreme Court once again clarified that contradictions drawn from police statements are not substantive evidence and cannot form the foundation of a conviction.

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The Limited Role of Police Statements

During investigation, statements of witnesses are recorded under Section 161 CrPC. However, under Section 162 CrPC, these statements are expressly barred from use in evidence, except for the limited purpose of contradiction.

This contradiction can only be brought in through Section 145 of the Indian Evidence Act, which allows the defence or prosecution (with the court’s permission) to confront a witness with prior inconsistent statements. Crucially:

• These contradictions do not themselves prove the fact in issue.

• Their role is only to test the credibility and reliability of the witness who has resiled.

The Process of Proving Contradictions

For a contradiction to have any legal effect, strict compliance with Section 145 of the Evidence Act is required:

1. The witness must be confronted with the specific portion of the prior statement.

2. If the witness denies making it, the Investigating Officer must be examined to prove that such a statement was indeed made.

3. Even after being “proved,” the contradiction remains only a credibility check—not independent evidence of the facts stated therein.

The Court warned that trial judges cannot use police statements on their own motion as if they were evidence. They become relevant only after being “duly proved” in the prescribed manner.

What About Section 164 CrPC Statements?

Interestingly, the Court extended this principle even to statements recorded by a Magistrate under Section 164 CrPC. While these are procedurally more reliable than police statements, they too do not attain the character of substantive evidence. Their use remains limited to:

• Corroboration (if consistent with court testimony), or

• Contradiction (if inconsistent with court testimony).

But, standing alone, a Section 164 statement cannot secure a conviction.

Why This Matters

The Supreme Court’s insistence is founded on the basic principle of criminal jurisprudence: a man cannot be convicted unless there is substantive evidence, given under oath, tested by cross-examination in court.

Contradictions highlight inconsistency or unreliability, but they cannot supply the missing substantive evidence. In absence of credible, positive evidence, mere contradictions—whether from police diaries or Magistrate-recorded statements—cannot establish guilt beyond reasonable doubt.

Practical Implications for Trials

• For Prosecutors: A hostile witness must not be left with a few mechanical suggestions. Proper and meaningful cross-examination is essential to test the truth.

• For Defence: The use of contradictions is a weapon to discredit, not to substitute for substantive evidence.

• For Judges: It is vital to ensure contradictions are proved as per procedure, and equally vital not to treat them as substantive proof.

The Core Point

The Supreme Court is saying that contradictions—whether drawn from:

• Section 161 CrPC statements (statement to police during investigation), or even

• Section 164 CrPC statements (statement/confession recorded before a Magistrate),

cannot be treated as substantive evidence by themselves.

1. What is “Substantive Evidence”?

• Substantive evidence = evidence that the court can directly rely upon to establish a fact in issue.

• Example: a witness testifying under oath in court about what they saw, or documentary evidence duly proved.

• It is the real backbone of conviction or acquittal.

2. What are “Contradictions under Section 145 Evidence Act”?

• Section 145 Evidence Act allows a witness to be cross-examined with his earlier written statement.

• The earlier statement is not evidence in itself—it serves only a limited role: to show that the witness is inconsistent, unreliable, or untruthful.

• Example:

  • Witness in court says: “I saw A stab B.”

  • In his 161 CrPC statement to police, he had said: “I did not see who stabbed B.”

  • Defence can use Section 145 to contradict him.

  • This contradiction affects credibility but does not prove the fact of who stabbed B.

Thus, the contradiction is only a tool for testing reliability, not independent evidence of the incident.

3. Why Even Section 164 CrPC Statements Are Not “Substantive”

• Section 164 CrPC allows a Magistrate to record witness statements or confessions voluntarily.

• The logic: Since they are not made in court (under oath and subject to cross-examination), they too cannot be treated as substantive evidence.

• They may be used to:

  • Corroborate testimony (if consistent), or

  • Contradict testimony (if inconsistent),
    but they do not by themselves establish guilt or innocence.

4. What the SC is Cautioning Against in Para 81 of said judgment

• Trial courts and High Courts must not fall into the trap of using contradictions as if they were “positive evidence.”

• Even if a contradiction is proved through the Investigating Officer or by confronting the witness, it only “weakens credibility”; it does not “add new facts” into the evidentiary record.

• A conviction cannot rest solely on contradictions. There must be substantive evidence—like direct testimony, supported by corroboration if available.

Illustration

Let’s imagine:

• Prosecution witness says in court: “I did not see the murder.”

• Police statement (161 CrPC): “I saw the accused stab the victim.”

Even if the court says “Aha! The witness is contradicting himself,” it cannot convict the accused based on this police statement. The statement is not evidence—it only shows that the witness is unreliable.

The conviction still needs positive, substantive testimony or other forms of admissible evidence.

 In summary:

Para 81 of said judgment highlights a very important evidentiary principle: Contradictions (under Section 145 Evidence Act) and even prior statements (under Section 164 CrPC) are not substantive evidence. They serve only as credibility tests—not proof of guilt. Conviction must be based solely on substantive legal evidence given under oath in court, not on investigative paperwork or prior statements.

Conclusion

The message from the Supreme Court in Mahabir v. State of Haryana is unequivocal: Contradictions are not evidence. Whether under Section 145 of the Evidence Act, or even when a statement is recorded under Section 164 CrPC, these materials serve only a collateral purpose. Ultimately, convictions must rest on substantive evidence given before the trial court under oath.

This ruling is a timely reminder for trial courts and High Courts not to blur the boundaries between contradiction and evidence—and for prosecutors to rise above perfunctory cross-examinations when dealing with hostile witnesses.

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Delhi HC: The expression "the matters before it" in the definition of "proof are wide enough to cover matters which are not "evidence" as defined in the Act

 "13. Section 3 of the Indian Evidence Act, 1872

13.1 Proof: A fact is said to be proved when, after considering the matters before it, the Court either believes it to exist, or considers its existence so probable that a prudent man ought, under the circumstances of the particular case, to act upon the supposition that it exists. "Evidence" of a fact and "proof" of a fact are not synonymous terms. "Proof", in the strict sense, means the effect of evidence.

13.2 Section 3 defines the expressions 'proved', 'disproved', and 'not proved' as under:-

"Proved" A fact is said to be proved when, after considering the matters before it, the Court either believes it to exist, or considers its existence so probable that a prudent man ought, under the circumstances of the particular case, to act upon the supposition that it exists.

"Disproved" A fact is said to be disproved when, after considering the matters before it, the Court either believes that it does not exist, or considers its non-existence so probable that a prudent man ought, under the circumstances of the particular case, to act upon the supposition that it does not exist.

"Not proved" A fact is said not to be proved when it is neither proved nor disproved.

13.3 Meanings of term "the matters before it"

The expression "the matters before it" in the definition of "proof" are wide enough to cover matters which are not "evidence" as defined in the Act. For instance, a fact may be orally admitted in the Court. The admission would not come within the definition of the word 'evidence' as given in this Act, but still it is a matter which the Court would have to take into consideration in order to determine whether the particular fact was proved or not. The Court is thus entitled to take into consideration all the matters before it which shall include the statement of the witnesses, admissions of the parties, confession of the accused, documents proved in evidence, judicial notice, demeanour of witnesses, local inspections and presumptions.

IN THE HIGH COURT OF DELHI

Mac. App. 1114/2017

Decided On: 28.09.2018

Suman Devi and Ors. Vs. Mahesh Arora and Ors.

Hon'ble Judges/Coram:

J.R. Midha, J.

Citation: MANU/DE/3807/2018.

Read full Judgment here: Click here.

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What is the distinction between real and demonstrative evidence ?

 Real and demonstrative evidence are two distinct types of evidence used in legal proceedings, each serving a different purpose and having specific characteristics. Here's a distinction between them:

Real Evidence:

• 1) Definition: Real evidence, also known as physical evidence or tangible evidence, refers to actual objects or physical items that are directly related to the case. It includes items, substances, or tangible materials that can be presented in court.

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• Examples: Real evidence can include weapons, documents, photographs, drugs, clothing, murder weapons, and physical objects involved in the alleged crime, such as a stolen item or a damaged vehicle.

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Can the Plaintiff Ask the Defendant to Adduce Their Evidence, Reserving the Liberty to Lead Evidence in Rebuttal After Presenting Their part Evidence?

 It will be also necessary to refer to Rule 3 of Order XVIII which reads thus:

3. Evidence where several issues. Where there are several issues, the burden of proving some of which lies on the other party, the party beginning may, at his option, either produce his evidence on those issues or reserve it by way of answer to the evidence produced by the other party; and, in the latter case, the party beginning may produce evidence on those issues after the other party has produced all his evidence, and the other party may then reply specially on the evidence so produced by the party beginning; but the party beginning will then be entitled to reply generally on the whole case. {Para 11}

12. Rule 1 recognises that ordinarily it is the Plaintiff who has a right to begin by leading his evidence. The only exception is where the Defendant admits the facts alleged by the Plaintiff and contends that either on point of law or on some additional facts alleged by the Defendant that the Plaintiff is not entitled to any part of the relief which he seeks. In such a case, the Defendant has right to begin. Rule 3, deals with a contingency where burden of proving some of the issues is on the Defendant. In such a case Rule 3 gives an option to the Plaintiff to produce his evidence on those issues or reserve it by way of answer to the evidence produced by the other party. When the Plaintiff exercises such option, he can produce the evidence on said issues by way of rebuttal after the Defendant has produced all his evidence.

16. Thus, the consistent view taken by this Court is that a direction against the Defendant to lead evidence before the Plaintiff leads his evidence cannot be issued under sub rule 1 of Order XVIII of the said Code. The scheme of Rule 1 appears to be that as a normal Rule it is the privilege of the Plaintiff to lead his evidence first. However, it enables the Defendant to exercise the right in the contingency mentioned in the Rule. The Plaintiff in a given case can make a statement before the trial Court stating that as the case is covered by exception in Rule 1 of Order XVIII of the said Code, he is reserving his right to lead evidence in rebuttal after the Defendant leads his evidence. The said option can be exercised in mofussil courts by the Plaintiff by filing a pursis to that effect. In a Court in which there is no practice of filing pursis, the Plaintiff can make oral statement to that effect which will be normally recorded in the roznama of the case. After the Plaintiff exercises option it is for the Defendant to decide whether he wants to lead the evidence. If the Defendant decides to lead the evidence, the Plaintiff can always lead evidence in rebuttal. As held by this Court, the Court has no power to issue a direction to the Defendant compelling him to lead his evidence before the Plaintiff adduces his evidence. Only when the Defendant claims right to begin under Rule 1 and the Plaintiff disputes existence of such a right, the Court will have to decide the question whether the Defendant has acquired a right to begin.

 IN THE HIGH COURT OF BOMBAY

Writ Petition No. 2810 of 2007

Decided On: 04.06.2007

 Bhagirath Shankar Somani and Ors.  Vs. Rameshchandra Daulal Soni and Ors.

Hon'ble Judges/Coram:

Abhay Shreeniwas Oka, J.

Citation: MANU/MH/0306/2007,(2007)5 MHLJ 508.

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Whether the person giving false answers to interrogatories is liable for perjury?

Under Order 11, Rule 22 CPC, the answer given in response to an interrogatory can be used in evidence, and therefore, its correctness and veracity will be established only at trial. Undoubtedly, it is incumbent upon a person answering the interrogatories to be truthful in the answers, and if the person is eventually found to have given false answers, they can be visited with consequences like perjury, in accordance with law, since the answer given in response to interrogatory can be used in evidence under Rule 22. All such consequences are within the domain of the Trial Court which shall eventually deal with the evidence produced by the parties before it. {Para 26}

 IN THE HIGH COURT OF DELHI

FAO 37/2020 and C.M. Appl. No. 3126/2020

Decided On: 29.08.2022

Rattan Mehta and Ors. Vs. Gayatri Shah and Ors.

Hon'ble Judges/Coram:

Manoj Kumar Ohri, J.

Citation: MANU/DE/3126/2022

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Whether wife must give special power of attorney in favour of her husband for giving evidence on her behalf?

The other contention of the applicant-defendant is that the husband was not the duly constituted agent of the wife Janabai inasmuch as the power of attorney exhibit 15 was executed at Kanhan while the attestation by other witnesses is executed at Ramtek. Apparently, the argument sounds logical and reasonable. But this is a peculiar case of relationship between husband and wife and the husband acting for and on behalf of his wife, not as a contractual agent, but as an implied agent.

11. Section 192 of the Indian Contract Act defines what is an “agent” and a “Principal”. An “Agent” is a person employed to do any act for another, or to represent another in dealings with third persons. The person for whom such act is done, or who is so represented, is called the “principal”. Under Section 183, any person who is of the age of majority according to the law to which he is subject, and who is of sound mind, may employ an agent. Section 185 provides that no consideration is necessary to create an agency. Now, the next two provisions of Contract Act viz. sections 186 and 187 are important for the purpose of the present case; section 186 says: “The authority of an agent may be expressed or implied” and section 187 states:

“An authority is said to be express when it is given by words spoken or written. An authority is said to be implied when it is to be inferred from the circumstances of the case; and things spoken or written, or the ordinary course of dealing, may be accounted circumstances of the case.”

 12. The relationship of Principal and Agent may be constituted by (a) express appointment, (b) by implication of law from the conductor situation of parties or from the necessity of the case, or (c) by subsequent ratification by the principal. Since no consideration is required to create an agency and since the authority of an agent could be expressed or implied and that authority could be expressed even by words “spoken” or “written” and it can be implied when it could be inferred from the circumstances of the case and things spoken or written, or the ordinary course of dealing, then each case of an agent representing the principal, and his authority could be inferred from the circumstances as may be accruing in a given case. The husband and wife is a relationship which is special and important case of implied authority. Under law, the husband and wife are treated as one person. More so in India and in Hindu societies where the wife is illiterate, it is the husband who has an implied authority to conduct all property transactions for and on behalf of his illiterate wife and is a custom which is broadly and generally accepted as the ordinary course of dealings. This presumption could be rebutted on behalf of the other party by specifically alleging that either husband and wife are living separate or are divorced or are not on cordial terms. But for that purpose, specific pleadings and necessary proof is required. In the matter of giving evidence in an ejectment suit on behalf of wife, the husband need not have a special power of attorney to adduce evidence on her behalf unless it was challenged in the defence pleadings.

 In the High Court of Bombay

(Nagpur)

(Before S.W. Puranik, J.)

Laxman Sadashiv Pandre Vs Janabai Rajaramji Ambagade 

Civil Revn. Appln. No. 638 of 1982

Decided on September 25, 1985

Citation: 1985 SCC OnLine Bom 236 : 1986 Mah LJ 75

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Whether court can decide an application for condonation of delay without recording evidence?

 The delay condonation application is a miscellaneous judicial proceeding and it is to be decided on the basis of the evidence led by the parties before the Court. The regular procedure is to record the evidence of the parties by way of examination-in-chief and cross-examination. However, such procedure can be dispensed with by the Court if the Court desires to exercise powers under Order XIX, Rule 1 of the Code of Civil Procedure, 1908. In that eventuality the Court has to pass an order to that effect. Order XIX, Rule 1 of the Civil Procedure Code is to the following effect:

1. Power to order any point to be proved by affidavit.--Any Court may at any time for sufficient reason order that any particular fact or facts may be proved by affidavit, or that the affidavit of any witness may be read at the hearing, on such conditions as the Court thinks reasonable. Provided that where it appears to the Court that either party bona fide desires the production of a witness for cross-examination, and that such witness can be produced, an order shall not be made authorising the evidence of such witness to be given by affidavit.{Para 5}

6. Thus, the Court can read the evidence led by way of the affidavit after having recorded the sufficient reasons for accepting such affidavits and, if no such order is passed by the Court, the Court is under obligation to follow the regular procedure of recording the evidence by way of examination-in-chief and cross-examination. In the present matter, it is further noticed that none of the parties have filed pursis informing the Court that the evidence is closed by either side. Thus, it is transpired that the matter is disposed of simply on the basis of the pleadings of the parties without recording of evidence in the Court and/or obtaining evidence as per Order XIX, Rule 1 of the Code of Civil Procedure, 1908. In the absence of pursis of the parties that they do not intend to lead evidence and/or they have closed evidence, it was inappropriate on the part of the First Appellate Court to dispose of the matter on the basis of the pleadings of the parties simpliciter. Therefore, on this aspect of the matter, the order passed by the First Appellate Court suffers from a procedural drawback and requires to be set aside. It is accordingly set aside. However, since the matter was disposed of without following the procedure as discussed above, it has become necessary to remand the matter to the First Appellate Court to decide the delay condonation application after recording evidence of the parties in the Court and/or by way of affidavit after passing an order under Order XIX, Rule 1 of the Code of Civil Procedure, 1908. 

Bombay High Court

Holya Lasha Mahale And Anr. vs Raghunath Holya Mahale on 29 March, 2006

Bench: S Mhase

Equivalent citations: 2006 (44) MhLj 80

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Whether court can permit party to administer interrogatories for obtaining discoveries of facts which constitutes evidence of its adversary's case?

  Order XI, Rule 1 of the Code of Civil Procedure prescribes that in any suit the parties by leave of the Court may deliver interrogatories provided that the interrogatories which do not relate to any matters in question in the suit shall be deemed irrelevant, notwithstanding that they might be admissible on the oral cross-examination of the witness. This rule is enacted to enable the parties to know the nature of the opponent's case, but the rule does not entitle the party to ascertain the facts which constitute exclusively the evidence of the other side, the reason being that it would enable unscrupulous parties to tamper with the witnesses of the other side and to manufacture evidence in contradiction and so shape his case as to defeat justice. In cases where the plaint or written statement does not necessarily disclose the nature of the case, then interrogatories are administered to make good the deficiency. Interrogatories can also to be administered to obtain administered from other parties to facilitate the proof of the claim. Order XI, Rule 6 of the Code of Civil Procedure provides that the interrogatories may be objected on the ground that it is scandalous or irrelevant or not exhibited bona fide for the purpose of the suit or that the matters inquired into are not sufficiently material at that stage. It is well settled that the parties are not entitled to administer interrogatories for obtaining discoveries of facts which constitutes evidence of its adversary's case or title.{Para 7}

Bombay High Court

M. L. PENDSE AND M. P. KENIA, JJ.

Nishi Prem vs. Javed Akhtar and others

Appeal No. 957 of 1987

19th September, 1987.

Citation: 1987 ALLMR ONLINE 596,AIR 1988Bom 222

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Is a right created in a party by any observation of court made without pleading and evidence?

 Shri Sawant emphasises that on 16.04.2012, this Court

did observe in its docket proceedings that both the brothers contributed the sale consideration. So, it is beyond any pale of controversy that Subhash has a stake in the decretal amount.

That accepted, if the Court allows Rajesh to withdraw the entire decretal amount, it prejudices Subhash. In this context, Shri Sawant insists that Rajesh has played fraud on Subhash. With that, the whole judicial proceedings stand vitiated. So no

procedural limitations can come in the way of this Court’s

allowing the interlocutory application. That, in fact, serves the

cause of justice. {Para 14}

  Now, let us deal with a collateral issue. Subhash insists

that this Court, in its order dated 16.04.2012, noted that

Subhas, too, contributed to the sale consideration. In this

context, I may note that to facilitate adjudication of the matter,

procedurally the Court undertakes various steps. And in that

process, it may prima facie observe or record certain aspects

based on the counsel’s representations. They are sans pleadings

and sans evidence. Such observations do acknowledge the

parties existing rights if any, but they do not create rights on

their own. A Court’s observation cannot give rise to a right

unless it has already existed, nor does it provide a cause of

action. Here, in this case it had never been in the Court’s

contemplation as to who contributed the sale consideration. It is

a non sequitur. {Para 35}

IN THE HIGH COURT OF JUDICATURE AT BOMBAY

ORDINARY ORIGINAL CIVIL JURISDICTION

INTERIM APPLICATION (L) NO. 11624 OF 2021

IN

SUIT NO. 2700 OF 2011

RAJESH SAICHAND SHARMA Vs SUDERSHAN GANGARAM RAJULA 

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Whether the court can reject the application for summoning of witnesses U/S 311 of CRPC on the ground that the High court makes the case time-bound?

 An FIR came to be lodged against the petitioner and her father for an incident that took place on 1.1.2008 wherein it was alleged that the petitioner herein had administered poison/chemical to the complainant (husband in the present proceedings). On the basis of the FIR that was lodged a divorce decree was granted to the husband on the ground of cruelty which order has been affirmed upto the Hon'ble Supreme Court. The petitioner herein has been able to lay hands on the opinion of the Medical Board as to the nature of the poison that was allegedly administered and the opinion of the Board has become relevant to establish the fact whether a false complaint was registered against the petitioner and her father and whether lodging of such false complaint would or would not tantamount to cruelty. Therefore, rejecting the application under Section 311 Cr.P.C. without going into the crux of the matter , rejecting the said application solely on the ground that trial has to be completed within a period of two months is not a ground that is sustainable in the eye of law . The concept of fair trial as has been held in various judgments particularly in Ram 12 of 13 Mehar and others's case (supra) would necessitate that adequate opportunity is given to the parties in order to enable the court to arrive at a just and fair final decision.

For the reasons afore-stated, the present petition is allowed, impugned order is set aside and the application filed by the petitioner under Section 311 Cr.PC. for leading additional evidence is allowed and the petitioner is hereby given two effective opportunity to lead additional evidence on the date to be fixed by the trial court to be concluded within a week.

Punjab-Haryana High Court

Sonia vs State Of Haryana And Others on 9 January, 2017

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Whether the evidence recorded U/S 164 of Cr.P.C. can be considered as an evidence U/S 35 of the POCSO Act?

 Whether the evidence which has been recorded under Section 164 of Cr.P.C. can be considered to be an evidence under Section 35 of the POCSO Act?

37. Although, learned counsel for the petitioner placed reliance on Shivanna @ Tarakari Shivanna to contend that the statements made under Section 164 of Cr.P.C. has to be construed as substantive evidence, we do not think that the said contention can be accepted in view of the judgments of the Hon'ble Supreme court referred to above and particularly the latest judgment in Somasundaram @ Somu wherein the earlier judgments on the point have been considered. We have also already noted, evidence stricto senso is what is recorded by the Special Court before itself and cannot be equated with the statement of the victim under Section 164 of Cr.P.C.

38. In this context, it would be useful to refer to one of the earlier judgments of the Privy Council on the point in the case of Mamand v. Emperor, [AIR 1946 PC 45], wherein it has been observed that a statement under Section 164 Cr.P.C. cannot be treated as substantive evidence of the facts stated. Such a statement can be used to discredit the evidence of the witness but not for any other purpose. Further, where the Court in view of the statement under Section 164 Cr.P.C, considers the witness to have been won over by the defence, the correct attitude for the Court to adopt is to entirely ignore his evidence.

39. In view of the aforesaid discussion, we answer question No. 1 by holding that the statement recorded under Section 164 of Cr.P.C. cannot be considered to be evidence under Section 35 of the POCSO Act.

 In the High Court of Karnataka(Principal Bench at Bengaluru)

(Before B.V. Nagarathna and M.G. Uma, JJ.)

Criminal Petition No. 2951/2020:

Hanumantha Mogaveera Vs State of Karnataka, 

Decided on April 23, 2021

Citation: 2021 SCC OnLine Kar 12300 : (2021) 3 KCCR 1897 (DB)

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Supreme Court: It is not mandatory to file application seeking permission to adduce Secondary evidence

 There is no requirement that an application is required to be filed in terms of Section 65(c) of the Evidence Act before the secondary evidence is led. A party to the lis may choose to file an application which is required to be considered by the trial court but if any party to the suit has laid foundation of leading of secondary evidence, either in the plaint or in evidence, the secondary evidence cannot be ousted for consideration only because an application for permission to lead secondary evidence was not filed.

Supreme Court of India

Dhanpat vs Sheo Ram (Deceased) Through His ... on 19 March, 2020

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Whether court should release the accused on bail in the Pocso case if the court fails to record evidence of the victim child within thirty days?

 Be that as it may. The second point of

reference is, whether, the accused is entitled to be

released on bail if the evidence of the child has not been

recorded within a period of thirty days of taking cognizance

of the offence or if the Special Court does not complete the

trial within a period of one year from the date of taking

cognizance. Such an interpretation would be an additional

clause under the said provision and giving an additional

right to the accused. {Para 41}

42. It is observed that the object and purpose of

Section 35 of the POCSO Act is for the benefit of the child

victim and is not to be considered as an additional clause

for the purpose of granting bail to the alleged perpetrator

or the accused.

43. As discussed above, there may be various

reasons and circumstances beyond the control of the

Special Court under which the conclusion of the

proceedings within a period of one year may not happen.

As already noted, the reasons for the same have been

discussed above. Under such circumstances, the accused

cannot enforce the right to be released on bail. No such

right is envisaged under the said provisions of the Act and

the same cannot be read into it by way of an interpretation

which may go against the interest of the child victim. If

the aforesaid interpretation is to be made then, there

would be every attempt made to delay the proceedings

before the Special Court beyond the period of one year and

seek release of accused on bail. Such a position cannot be

encouraged nor is it envisaged under the POCSO Act.

44. Hence, any order passed by following the

dictum in Vinay with regard to grant of bail to the accused

on the premise there has been a delay in recording

evidence or for that matter, non-conclusion of the

proceedings within a period of one year from the date of

taking cognizance by the Special Court, is not good law

and it cannot be a precedent for future cases. In the

circumstances, we hold that the order passed in Vinay

cannot be treated as a judicial precedent in future cases.

IN THE HIGH COURT OF KARNATAKA AT BENGALURU

PRESENT

 MRS. JUSTICE B.V.NAGARATHNA AND MRS. JUSTICE M.G.UMA

CRIMINAL PETITION No.2951 OF 2020

HANUMANTHA MOGAVEERA  Vs STATE OF KARNATAKA 

DATED THIS THE 23rd DAY OF APRIL, 2021

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Supreme court guidelines modifying practice of recording of evidence as mandated in the case of Bipin Shantilal Panchal

  It was pointed out by learned amici that the practice adopted predominantly in all trials is guided by the decision of this court in Bipin Shantilal Panchal v. State of Gujarat (2001) 3 SCC 1 with respect to objections regarding questions to be put to witnesses. This court had termed the practice of deciding the objections, immediately as “archaic” and indicated what it felt was an appropriate course:

“It is an archaic practice that during the evidence collecting stage,

whenever any objection is raised regarding admissibility of any material in

evidence the court does not proceed further without passing order on such

objection. But the fall out of the above practice is this: Suppose the trial

court, in a case, upholds a particular objection and excludes the material

from being admitted in evidence and then proceeds with the trial and

disposes of the case finally. If the appellate or revisional court, when the

same question is re-canvassed, could take a different view on the

admissibility of that material in such cases the appellate court would be

deprived of the benefit of that evidence, because that was not put on record

by the trial court. In such a situation the higher court may have to send the

case back to the trial court for recording that evidence and then to dispose

of the case afresh. Why should the trial prolong like that unnecessarily on

account of practices created by ourselves. Such practices, when realised

through the course of long period to be hindrances which impede steady

and swift progress of trial proceedings, must be recast or re-moulded to

give way for better substitutes which would help acceleration of trial

proceedings.

When so recast, the practice which can be a better substitute is this:

Whenever an objection is raised during evidence taking stage regarding

the admissibility of any material or item of oral evidence the trial court can

make a note of such objection and mark the objected document tentatively

as an exhibit in the case (or record the objected part of the oral evidence)

subject to such objections to be decided at the last stage in the final

judgment. If the court finds at the final stage that the objection so raised is

sustainable the judge or magistrate can keep such evidence excluded from

consideration. In our view there is no illegality in adopting such a course.

(However, we make it clear that if the objection relates to deficiency of

stamp duty of a document the court has to decide the objection before

proceeding further. For all other objections the procedure suggested above

can be followed.) The above procedure, if followed, will have two

advantages. First is that the time in the trial court, during evidence taking

stage, would not be wasted on account of raising such objections and the court can continue to examine the witnesses. The witnesses need not wait for long hours, if not days. Second is that the superior court, when the same objection is re-canvassed and reconsidered in appeal or revision against the final judgment of the trial court, can determine the correctness of the view taken by the trial court regarding that objection, without bothering to remit the case to the trial court again for fresh disposal. We may also point out that this measure would not cause any prejudice to the parties to the litigation and would not add to their misery or expenses.”{Para 12}

13. It was argued by amici that the procedure, whereby the courts record answers to all questions, regardless of objections, leads to prolonged and lengthy cross examination, and more often than not, irrelevant facts having no bearing on the charge

or the role of the accused, are brought on record, which often result in great prejudice. It is pointed out that due to the practice mandated in Bipin Shantilal Panchal (supra), such

material not only enters the record, but even causes prejudice, which is greatly multiplied when the appellate court has to decide the issue. Frequently, given that trials are prolonged, the trial courts do not decide upon these objections at the final stage, as neither counsel addresses arguments. Therefore, it is submitted that the rule in Bipin Shantilal Panchal (supra) requires reconsideration.

15. Apart from Section 148, there are other provisions of the Evidence Act (Sections 149-154) which define the ground rules for cross examination. During questioning, no doubt, the counsel for the party seeking cross examination has considerable leeway; cross examination is not confined to matters in issue, but extends to all relevant facts. However, if the court is not empowered to rule, during the proceeding, whether a line of questioning is relevant, the danger lies in irrelevant, vague and speculative answers entering the record. Further, based on the answers to what (subsequently turn out to be

irrelevant, vague or otherwise impermissible questions) more questions might be asked and answered. If this process were to be repeated in case of most witnesses, the record would be cluttered with a jumble of irrelevant details, which at best can be distracting,

and at worst, prejudicial to the accused. Therefore, this court is of opinion that the view in Bipin Shantilal Panchal should not be considered as binding. The presiding officer therefore, should decide objections to questions, during the course of the proceeding, or failing it at the end of the deposition of the concerned witness. This will result in decluttering the record, and, what is more, also have a salutary effect of preventing

frivolous objections. In given cases, if the court is of the opinion that repeated objections have been taken, the remedy of costs, depending on the nature of obstruction, and the proclivity of the line of questioning, may be resorted to. Accordingly, the practice mandated in Bipin Shantilal Panchal shall stand modified in the above terms.

 REPORTABLE

IN THE SUPREME COURT OF INDIA

ORIGINAL JURISDICTION

SUO MOTO WRIT (CRL) NO.(S) 1/2017

IN RE: TO ISSUE CERTAIN GUIDELINES REGARDING INADEQUACIES AND DEFICIENCIES IN CRIMINAL TRIALS  Vs THE STATE OF ANDHRA PRADESH 

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Whether court can direct the party to serve a bailable warrant to the witness personally?

 It has next been contended by Mr. Lodra that the trial court had committed material irregularity in directing the plaintiff to get the warrants served 'dasti' and in default the remaining evidence of the plaintiff shall be closed. This order is also wholly erroneous and is not in consonance with the well established procedure laid down in the Code of Civil Procedure. A Party cannot be called upon to serve warrant upon the witnesses. The service of the warrant should be through the agency of the court itself and it cannot be left to a private party. Such a direction therefore, being wholly erroneous is quashed.{6}

7. The further direction for directing the plaintiff to attend on 17.10.77 in the court for collecting the warrants is equally erroneous and unsustainable in law. It is for the Court's bailiff to collect the warrants and effect service on the persons. It is none of the duty of the party to effect the service of the warrants.

Rajasthan High Court

Pukh Raj vs Gram Panchayat Sanchore on 12 March, 1978

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Whether the party can confront another party's witness with the contents of pleadings or can ask to make comments or explain the party's pleadings?

 To wit, witnesses (other than the parties) have been confronted with the contents of the election petition or the written statement and asked to make comments or offer explanation as to passages therefrom, overlooking that Section 145 of the Evidence Act permits a witness being cross-examined as to previous statement made by him and not by a third person. How can a witness be confronted or asked to explain the contents of or averments made in writing or document to which he is not a party? 

Supreme Court of India

Makhan Lal Bangal vs Manas Bhunia & Ors. on 3 January, 2001

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When the court should allow or can refuse to allow questions at the time of cross-examination?

On plain reading of the said provisions, the contention of Shri Sudin Usgaonkar, learned Senior Advocate appearing for the Respondents, that the cross examination has to be restricted only to the statements made in the examination-inchief or in the pleadings cannot be accepted. It is always open in the cross

examination to put questions in order that they can nullify or establish the veracity or otherwise of the allegations made in the proceedings.

7. When the relevancy and the admissibility of a particular question is seriously raised, it is the endeavour of the Court to elicit the answer after recording the objectives. The final decision on such objectives can be decided at the end of the trial. This view has been taken by this Court in the Judgment reported in 2015 SCC Bom 2571 in the case of Neema Hingarh vs. Ashish Hingarh, wherein it has

been observed at Para 8 thus:

“8. In the case of Irfan Badshah (supra), the

learned Single Judge of Delhi High Court considered

Section 148 of the Indian Evidence Act, 1872 as also

the decision of the Apex Court in the case of Special

Cell, New Delhi v. Navjot Sandhi alias Afshan Guru,

(2003) 6 SCC 641, wherein it was observed thus,

“… the endeavour of the Court wherever

there is a serious dispute with regard to the

relevancy and admissibility of a question

should be to elicit the answer of the witness

after noting the objections. The final

decision to reject particular evidence as

irrelevant or inadmissible can be if required

taken at the end of the trial. This procedure

benefits even the appellate court as in a

case where the question is disallowed or

excluded from evidence and the appellate

court feels that the same was essential, it is

at this stage not required to remand back

the matter for re-examination of the witness.

Cross-examination is the main tool of an

accused to test the veracity of the evidence

of the witness and discredit his

trustworthiness. Moreover, this does not

mean that the trial court will not exercise its

discretion in disallowing irrelevant

questions.”

In such circumstances, I find that the procedure followed by the

learned Trial court refusing to allow the questions at the time of the cross examination, is not at all justified, unless the Court comes to the conclusion that the questions are inter alia those which a party cannot be forced to answer and are patent erroneous and put to delay the proceedings and for oblique purpose or have

no nexus with the dispute between the parties.

As a general rule, the Court would not be justified in imposing restrictions in the cross examination of a witness. But however the Court may in the course of the trial come to the conclusion that some of the cross examination was unnecessary and, in such a case, the Court has powers to control the cross examination of a witness by the Counsel but such power has to be exercised in a reasonable way. As such, the Trial Court should see that the cross examination is not conducted in a rumbling way or that the

questions are impermissible under the provisions of the Indian Evidence Act.

IN THE HIGH COURT OF BOMBAY AT GOA

WRIT PETITION NO. 411 OF 2015

Mr. Ajit Sukhijia Vs Mr. Edgar Francisco Valles,

Coram :- F. M. REIS, J

Date : 9 th July, 2015.

Citation: 2016(2) ALLMR 447

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