“It may be stated that Section 145 of the Evidence
Act permits cross-examination of a witness as to
his previous statement
made in writing or
reduced into writing and relevant to matters
in question without such writing being shown to
him or being proved. If the witness admits having
made any such contradictions in his previous
statement, then there is no necessity to show
writing or prove it. But if he denies having made
any such statement and it is intended to contradict
of the
him by the writing, his attention must be drawn to
those parts of the statement before the writing
can be proved for the purpose of contradicting
him.”
It was further held that :
“This section in the Evidence Act does nowhere
exclude statement made by witness in writing or
reduced to
writing,
or
relevant
matters
in
question, during investigation, enquiry or trial or a
criminal case. In other words, a plain reading of
the section does not limit the cross-examination
only to statement of witnesses
made during the
investigation of a criminal case or its inquiry
or
trial. In so far as the statements made by a person
to a police officer in the course of investigation
under Chapter XIV are concerned, Section 162
prohibits their use for any purpose at any inquiry
or trial for an offence under investigation
under
the proviso
statements
can
contradiction
be
to that section.
used
for
except
Those
purposes
of
under Section 145 of the Evidence
Act and where any part of such statement
is so
used, any part of it may also be used for purposes
of any matter referred to in his cross-examination.
IN THE HIGH COURT OF BOMBAY AT GOA
WRIT PETITION NO. 447/2005
1. Shri Ranjit Satardekar,
V/s
1. Shri Joe Mathias,
CORAM : R.M.S. KHANDEPARKAR, J.
DATE : 16TH FEBRUARY, 2006.
Citation;2006 (3)AIR Bom R349(Goa bench)
Rule. By consent, rule is made returnable
The petitioners challenge the order passed by the trial
forthwith.
2.
Court dismissing the application which was filed by the petitioners
for summoning to produce
the Inspector
of Panaji Town Police
the statement recorded under Section 162 of the Code of Criminal
Procedure
of PW.1 which forms part of the records of Criminal Case
No.146/03/B pending in the Court of Judicial Magistrate, First Class,
Panaji. The impugned Order is dated 27.10.05 and has been passed
in Special Civil Suit No. 102/04/B.
3.
Placing reliance
in the decision
in the matter of
Malakala Surya Rao and ors. v. Gundapuneedi Janakamma.,
reported in AIR 1964 AP 198, the learned Advocate appearing for the
petitioners submitted that the trial Court clearly erred in rejecting the
application on assumption that the statement recorded under Section
Section
162 of Cr.P.C. cannot be used in civil proceedings.
The
learned Advocate appearing for the respondents, on the other hand,
drawing
attention to the ruling of the Apex Court in the case of
Khatri and ors etc. v. State of Bihar and others., reported in AIR
1981 SC 1068
submitted that the Apex Court therein has clearly
3
held that such
statements can
be used in evidence in
civil
proceedings provided such statements are relevant under the Indian
Evidence Act.
He, however,
further submitted that in view of the
decision of the Apex Court in Khatri and ors etc. (supra) the law
on the point of admissibility of the statement recorded under Section
162 Cr.P.C.
in civil proceedings is well settled and, therefore, the
impugned order cannot be sustained and is liable to be set aside and
the Court may,
by consent, set aside the same with directions to
expedite the disposal of the proceedings as there is already an order
of this Court to expedite and dispose of the same within the specified
period. Considering the law laid down by the Apex Court in Khatri's
case, it is apparent that though there is protection granted in relation
to the statement recorded under Section 162 Cr.P.C., as regards the
use thereof in civil proceedings, the Apex Court has held that :
“Protection
before the
against the use of statement made
police
during investigation is,
therefore, granted to the accused by providing that
such statement shall not be allowed to be used
except for the limited purpose set out
in the
proviso to the section, at any inquiry or trial in
respect of
the
offence
which
was
under
investigation at the time when such statement was
made.
But, this protection is unnecessary in any
proceeding other than an inquiry or trial in respect
of the offence under
investigation and hence the
bar created by the section is a limited bar. It has
no application, for example in a civil proceeding or
4
in a proceeding under Article 32 or 226 of the
Constitution, and a statement made before a police
officer in the course of investigation can be used as
evidence
in
such
proceeding,
provided
it
is
otherwise relevant under the Indian Evidence Act.”
It has also been held by the Apex Court therein that :
“it is obvious, therefore,
made before
can be
that even a statement
a police officer during investigation
produced and used in evidence in a writ
petition under Article 32 provided
it is relevant
under the Indian Evidence Act and Section 162
cannot be used as a bar against its production or
use. “
4.
The Apex Court in Khatri's case
decision of the Andhra Pradesh High Court in
and ors. (supra)
with approval.
has also referred to the
Malakala Surya Rao
The learned Single Judge
Andhra Pradesh High Court, had held that :
“It may be stated that Section 145 of the Evidence
Act permits cross-examination of a witness as to
his previous statement
made in writing or
reduced into writing and relevant to matters
in question without such writing being shown to
him or being proved. If the witness admits having
made any such contradictions in his previous
statement, then there is no necessity to show
writing or prove it. But if he denies having made
any such statement and it is intended to contradict
of the
5
him by the writing, his attention must be drawn to
those parts of the statement before the writing
can be proved for the purpose of contradicting
him.”
It was further held that :
“This section in the Evidence Act does nowhere
exclude statement made by witness in writing or
reduced to
writing,
or
relevant
matters
in
question, during investigation, enquiry or trial or a
criminal case. In other words, a plain reading of
the section does not limit the cross-examination
only to statement of witnesses
made during the
investigation of a criminal case or its inquiry
or
trial. In so far as the statements made by a person
to a police officer in the course of investigation
under Chapter XIV are concerned, Section 162
prohibits their use for any purpose at any inquiry
or trial for an offence under investigation
under
the proviso
statements
can
contradiction
be
to that section.
used
for
except
Those
purposes
of
under Section 145 of the Evidence
Act and where any part of such statement
is so
used, any part of it may also be used for purposes
of any matter referred to in his cross-examination.
The policy of the legislature
in so far as the
statements made to police officers are concerned,
has been
to exclude them in toto, subject
of
course to certain exceptions as in Section 27 of the
Evidence Act or under the proviso to Section 162
Criminal Procedure Code.”
It was also further held that :
“The words used in Section 145 are `or reduced
into writing' need not necessarily mean that they
are reduced into writing by someone authorised by
law to reduce them
into writing, such
as a
Magistrate or a Judge etc.”
After considering
it was held
various other Judgments of different High Courts,
that the statements
recorded by a police officer under
Section 162, could be used in a civil proceeding in view of Section 145
of the Evidence Act.
5.
Since the law on the point being well settled, certainly,
the impugned order cannot be sustained and is liable to be set aside.
While setting aside the impugned order by consent, it is necessary to
direct the trial Court to expedite the hearing of the special civil suit.
The trial Court is, therefore, directed to disposed of the special civil
suit as expeditiously as possible and in any case, on or before 30th
June, 2006. Consequently,
the application filed by the petitioners on
11.10.05 in Special Civil Suit No. 102/05/B
is, hereby, allowed.
Needless to say that the relevancy of the document which is sought
to be used for cross-examination will have to be dealt with by the
Trial Court in the course of recording of evidence bearing in mind the
provisions of the Indian Evidence Act as well as Order 13 of C.P.C.
7
Rule is made absolute accordingly with no order as to costs.
R.M.S. KHANDEPARKAR, J.
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