The proviso is vital and important. That clarifies that
any witness is called for the prosecution in the enquiry or the trial and
whose statement has been reduced into writing in terms of subsection (1)
of Section 162, any part of his statement, if duly proved, may be used by
the accused and with the permission of the Court by the prosecution to
contradict such witness in the manner provided by Section 145 of the
Indian Evidence Act, 1872 and when any part of such statement is so used,
any part thereof can also be used in reexamination of such witness, but for
the purpose only of explaining the matter referred to in his cross-
examination.
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO.1309 OF 2013
Shri Pappu @ Suresh Budharmal Kalani
Versus
The State of Maharashtra .. Respondent
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO.1309 OF 2013
Shri Pappu @ Suresh Budharmal Kalani
Versus
The State of Maharashtra .. Respondent
Read full judgment here;click here
A bare perusal thereof denotes that the statements to police are
not to be signed. Subsection (1) thereof states that no statement made by
any person to police officer in the course of the investigation under the
concerned chapter viz. Chapter XII shall, if reduced into writing, be signed
by the person making it nor shall any such statement or any record therein
whether in a police diary or any part of such record be used for any purpose
save as provided in that section itself, viz. section 162 at any enquiry or
trial in respect of any offence under investigation at the time when such
statement was made. The proviso is vital and important. That clarifies that
any witness is called for the prosecution in the enquiry or the trial and
whose statement has been reduced into writing in terms of subsection (1)
of Section 162, any part of his statement, if duly proved, may be used by
the accused and with the permission of the Court by the prosecution to
contradict such witness in the manner provided by Section 145 of the
Indian Evidence Act, 1872 and when any part of such statement is so used,
any part thereof can also be used in reexamination of such witness, but for
the purpose only of explaining the matter referred to in his cross-
examination.
106. The further perusal of this section would belie the contentions
of all the senior counsel that the proviso comes to the aid only of the
accused or the defence and not the prosecution. If the permission is given
by the Court and if the prosecution can confront the witness, whose
statement has been recorded and reduced into writing within the meaning
of subsection (1) of Section 162 or any part of the statement if duly
proved, to contradict him. The manner of contradicting him and with the
statement or any part thereof is set out by Section 145 of the Indian
Evidence Act, 1872. The reason for all this appears to be obvious and that
there is no fetter or limit or restriction, when confronting the witness while
deposing in Court with his previous statement reduced into writing or any
part thereof so as to elicit the truth. Eventually every enquiry and trial in a
sessions or a criminal case is to bring out unvarnished and complete truth.
If the endeavour is to bring out the truth, then, nothing can prevent the
same being brought out and in accordance with law. This is a legitimate
course permitted by law and when evidence is being recorded, the witness
first examines himself and it is known as his examination in chief. That
cannot be relied upon and will not answer the definition of the term
‘evidence’ unless and until an opportunity is given to the other side to test
its veracity and which is by crossexamination. Section 145 of the Indian
Evidence Act serves a salutary purpose. Its object is to enable effective and
proper crossexamination. Therefore, the witness deposing in Court can be
crossexamined not only on his oral testimony but also by confronting him
or showing him the documents or statements which have been made by
him and reduced into writing. So long as they are relevant to the matter in
question, the witness can be confronted with these statements without
showing him such writing or being proved but if it is intended to contradict
him with this writing, his attention has to be invited to those parts of it
which are to be used for the purpose of contradicting him. Therefore, the
witness can be confronted as to the previous statement made by him in
writing or reduced him into writing and without such writing being shown
to him or being proved but if it is intended to contradict him, his attention
be invited to that writing or to that part which is to be used for the purpose
of contradicting him. This is only an exception and if any previous
statement made to the police by the witness is reduced into writing,
Bhagwan Dass holds, that is not out of the preview of Section 145 of the
Indian Evidence Act, 1872. Ultimately, it is a statement made and reduced
into writing. Merely because, it is reduced into writing by a police officer,
does not mean that the same cannot be utilized so as to contradict the
witness. This is what Bhagwan Dass holds and we do not see any basis for
urging that this conclusion can never be reached in law or it being so
reached the same is per incuriam as it ignores other authoritative
pronouncement. Firstly because section 145 of Indian Evidence Act has
been specifically referred in section 162(1) proviso of the Code of Criminal
Procedure, 1973. Secondly, the proviso engrafts a exception and which
enables the witness at a trial to be confronted with his statement reduced
into writing. The words “as aforesaid” would mean that the statement
made by him to a police officer in the course of an investigation under
Chapter XII if reduced into writing or any part thereof can be used and the
crucial words “may be used by both the accused and with the permission of
the Court by prosecution,” to contradict such witness in the manner
provided by Section 145 shows that the mode of confronting him or
inviting his attention to any statement made previously by him in writing or
reduced into writing is set out in section 145 of the Evidence Act. There is
nothing in the provision, namely Section 162(1) proviso, which excludes a
statement made to police and reduced into writing from its purview. On
the other hand to allow a limited use of such statement and at a trial that
the proviso is inserted.
107. In Chapter X under Indian Evidence Act in which Section 145
falls, appear number of sections commencing from section 135 and what
are crucial therein are section 135 and 136. The same reduced as under:
“135. Order of production and examination of witnesses.
The order in which witnesses are produced and examined shall
be regulated by the law and practice for the time being relating
to civil and criminal procedure respectively, and, in the absence
of any such law, by the discretion of the Court.
136. Judge to decide as to admissibility of evidence.
When either party proposes to give evidence of any fact, the
Judge may ask the party proposing to give the evidence in
what manner the alleged fact, if proved, would be relevant;
and the Judge shall admit the evidence if he thinks that the
fact, if proved, would be relevant, and not otherwise.
If the fact proposed to be proved is one of which
evidence is admissible only upon proof of some other fact, such
lastmentioned fact must be proved before evidence is given of
the fact first mentioned fact must be proved before evidence is
given of the fact first mentioned, unless the party undertakes to
give proof of such fact, and the Court is satisfied with such
undertaking.
If the relevancy of one alleged fact depends upon
another alleged fact being first proved, the Judge may, in his
discretion, either permit evidence of the first fact to be given
before the second fact is proved, or require evidence to be
given of the second fact before evidence is given of the first
fact.”
108. When a witness is called by a party, his examination is called
examinationinchief. The examination of a witness by an adverse party is
called crossexamination and the reexamination of a witness is something
which takes place subsequent to the crossexamination and it is by the party
who called him. This is the order to be followed in terms of sections 137
and 138. Section 139 states that a person called upon to produce the
documents does not become a witness by the mere fact that he produces it,
unless and until he is called as a witness. The witness then may be cross-
examined and reexamined. Then come section 141 to 144 which provide
as to what question could be asked and what may not. Section 145 follows
section 144 and which states that evidence as to matters in writing can be
given but the document ought to be produced or secondary evidence as to
its contents has to be led. Therefore, what Section 145 provides and
naturally is crossexamination and as to previous statement in writing.
Therefore, we are not in agreement with Mr. Mundargi and Mr. Chitnis that
what the Supreme Court in Bhagwan Dass has permitted would run counter
to the said legal position and namely the statement to the police cannot be
used as evidence. Then reference was made to Section 154 and in which
there is a discretion in the Court to permit the person who calls a witness
to put any question to him which might be put in crossexamination by the
adverse party and by insertion of subsection (2) of Section 154 reliance
can be placed on any part of evidence of such witness. Therefore, this only
reinforces the settled principle that testimony or deposition of hostile
witness need not to be effaced from the record. That cannot be treated as
washed off the record. It remains admissible in the trial and there is no
legal bar for conviction upon his testimony or any part of evidence of such
witness provided it is corroborated by other reliable evidence.
109. Way back in the decision in the case of State of Kerala v. Babu
and ors. reported in AIR 1999 SC Page 2161, this aspect of the law has been
succinctly discussed and the questions of law particularly as formulated by
the Hon’ble Supreme Court in para 1(b) are the same which have been
raised before us:
“(b) Whether the learned Sessions Judge can call for the
police diaries of a case which is not under inquiry or trial
before him and permit it to be used by the accused for
contradicting a witness examined in another case under
trial before him.
(c) Whether Section 162 of the Cr.P.C. permit the use
of statement recorded under Section 161 of Cr.P.C. in any
other proceeding other than the inquiry or trial in respect
of the offence for which the investigation was conducted.”
4. Before examining the applicability of Section 172
of the Code, we will first consider the right of an accused
to crossexamine a witness with reference to the previous
statement of a witness in a trial.
5. A perusal of this Section shows that this Section
permits the crossexamination of the witness in any trial,
with reference to his previous statement, to establish a
contradiction and the manner in which such contraditions
can be established. Section 155 of the Evidence Act
provides that the previous statement of a witness can be
made use of during the crossexamination of that witness
for the purpose of impeaching the credit of the witness.
Thus, it is seen it is the right of a party in a trial to use the
previous statements of a witness either for the purpose of
establishing a contradiction in his evidence or for the
purpose of impeaching the credit of the witness. This
right given to a party in a trial under Section 145 of the
Evidence Act is somewhat controlled in criminal trials by
the provisions made in the Code.
6. Section 161 of the Code provides that the police
officer investigating a case is entitled to examine any
person and reduce the statement of such person in
writing. This statement recorded by a police officer under
Section 161 even though is a previous statement for the
purpose of Section 145 of the Evidence Act, such
statement can be used for the purpose of establishing a
contradiction or impeaching the credit of the witness only
in the manner provided for in Section 162 of the Code.
The use of the previous statement recorded under Section
161 of the Code is controlled by Section 162 of the Code.
7. Therefore, it is seen even in a criminal trial the
previous statement of a witness can be used by the
accused for the limited purpose mentioned in Section 162
of the Code as provided for in S.145 of the Evidence Act.
The object of enacting Section 162 is noticed by this
Court in the case of Tahsildar Singh v. State of U.P., AIR
1959 SC 1012, wherein it was held thus (Para 11):
“It is, therefore, seen that the object of the
legislature throughout has been to exclude the statement
of a witness made before the police during the
investigation from being made use of at the trial for any
purpose, and the amendments made from time to time
were only intended to make clear the said object and to
dispel the cloud cast on such intention. The Act of 1808
for the first time introduced an exception enabling the
said statement reduced to writing to be used for
impeaching the credit of the witness in the manner
provided by the Evidence Act. As the phraseology of the
exception lent scope to defeat the purpose of the
legislature, by the Amendment Act of 1923, the section
was redrafted defining the limits to confine it only to
contradict the witness in the manner provided under
Section 145 of the Evidence Act. If one could guess the
intention of the legislature in framing the section in the
manner it did in 1923, it would be apparent that it was to
protect the accused against the user of the statements of
witnesses made before the police during investigation at
the trial presumably on the assumption that the said
statements were not made under circumstances inspiring
confidence. Both, the section and the proviso intended to
serve primarily the same purpose i.e., the interest of the
accused.
8. Therefore, on a reading of Section 162 of the Code
bearing in mind the object of the said Section and Section
145 of the Evidence Act, it is clear that an accused in a
criminal trial has the right to make use of the previous
statements of a witness including the statements recorded
by the investigating agency during the course of an
investigation for the purpose of establishing a
contradiction in the evidence of a witness or to discredit
the witness. The question then arises how does the
accused confront the previous statement made by a
witness in the course of an investigation to establish the
contradiction in the evidence given by the witness in the
trial. So far as the statements made during the course of
investigation of the case being tried is concerned, there is
no difficulty because an accused is entitled under Section
207 of the Code for the supply of free copies of the
documents referred to in the said Sections which includes
the previous statement recorded under subsection (3) of
Section 161 of the Code. The accused does not have such
a right as a matter of course in regard to other previous
statements; moreso, in regard to the statements recorded
buy the invesigating agency under Section 161 in a case
other than the one that is being tried by the Court.
Therefore, in the instant case, the accused made an
application for summoning the case diary of Crime
No.81/91 invoking the provisions of Section 172 of the
Code. But the State contends that this Section does not
apply to summoning the case diary of cases other than
the one that is being tried.”
110. The later part of the decision deals with as to how the police
diary of another case could have been utilized so as to confront the witness
with the previous statement in writing. We are not concerned with that
part of the judgment in this case.
111. We are surprised that how in the teeth of this judgment and
reported in AIR 1999 SC page 2161 could it be argued that the course
adopted by the learned trial Judge in this case was impermissible in law or
that the same runs counter to Tahsildar’s case (supra). We need not
multiply cases on this point. Although our attention has been drawn to
several other cases and decisions, the view taken in State of Kerala v. Babu
has neither been distinguished far from being reversed later. Hence,
Bhagwan Dass may not be referring to this judgment but the conclusion in
Bhagwan Dass cannot be said to be contrary to law. Once this view is taken
and of the provisions of law, then, there is no need to refer to the other
Judgments relied upon by the counsel. The section itself being clear, its
plain words cannot be ignored.
112. Nowadays, there is a tendency to argue and with regard to
even the judgments of the Hon’ble Supreme Court of India in the teeth of
Article 141 that they are per incuriam. What is being argued before us
today is in the context of a supreme Court judgment. The judgment of the
Hon’ble Supreme Court binds us by virtue of the above constitutional
mandate. It continues to bind us so long as the Hon’ble Supreme Court
itself declaring that it is neither laying down the correct law or it is reversed
by it in the later decision.
113. Such is not the position before us and yet, the judgment in
Bhagwan Dass case is termed as per incuriam. That is without
understanding the contours of judicial discipline. A judgment of the
Hon’ble Supreme Court is binding and cannot be brushed aside on a
specious plea that some argument has not been noticed or that a different
argument which is now made or a different shade of it was not presented.
Similarly, there cannot be a deviation therefrom on some possibilities. The
principle of per incuriam is explained in the judgment of Hon’ble Supreme
Court which reported in AIR 2005 SC 752 (Central Board of Dawoodi
Bohra Community v. State of Maharashtra). At paras 6 and 7 the Hon'ble
Supreme Court states the principle thus:
“6. Ms. Indra Jaisingh, the learned Senior Counsel for the
petitioners submitted that the view of the law taken by the
abovesaid four Constitution Benches is per incuriam and is not
the correct law as previous decision of this Court by a
Constitution Bench in Union of India and Anr. v. Raghubin
Singh (dead) by LRs. etc. (1989) 2 SCC 754, takes a contrary
view and being an earlier decision was binding on the
subsequent Benches. We do not agree with the submission of
the learned Senior Counsel that the decisions referred to by the
learned counsel for the respondent No.2/applicant are per
incuriam. She has also placed reliance on a Constitution Bench
decision in Union of India & Anr. v. Hansoli Devi & Ors.
(2002)7 SCC 273, wherein the Constitution Bench heard a
Reference made by two Judge Bench expressing disagreement
with an earlier three Judge Bench decision.
7. The Constitution Bench in the case of Chandra Prakash
and Ors. v. State of U.P. & Anr. (2002)4 SCC234, took into
consideration the law laid down in Parija's case and also
referred to the decision in Union of India and Anr. v. Raghubir
Singh (dead) by LRs. etc. relied on by Ms. Indra Jaising, the
learned Senior Counsel and then reiterated the view taken in
Parija's case. Per incuriam means of decision rendered by
ignorance of a previous binding decision such as a decision of
its own or of a Court of coordinate or higher jurisdiction or in
ignorance of the terms of a statute or of a rule having the force
of law. A ruling making a specific reference to an earlier
binding precedent may or may not be correct but cannot be
said to be per incuriam. It is true that Raghubir Singh's case
was not referred to in any case other than Chandra Prakash &
Ors. case but in Chandra Prakash & Ors. case, Raghubir Singh's
case and Parija's case both have been referred to and
considered and then Parija's case followed. So the view of the
law taken in series of cases to which Parija's case belongs
cannot be said to be per incuriam.”
Further in the case of State of Gujarat and anr. v. Mr. Justice R.A. Mehta
(Retd.) and ors. reported in AIR 2013 SC 693:
“35. There can be no dispute with respect to the
settled legal proposition that a judgment of this Court is
binding, particularly, when the same is that of a co-
ordinate Bench, or of a larger Bench. It is also correct
to state that, even if a particular issue has not been
agitated earlier, or a particular argument was advanced,
but was not considered, the said judgment does not
lose its binding effect, provided that the point with
reference to which an argument is subsequently
advanced, has actually been decided. The decision
therefore, would not lose its authority, “merely because
it was badly argued, inadequately considered or
fallaciously reasoned”. The case must be considered,
taking note of the ratio decidendi of the same i.e., the
general reasons, or the general grounds upon which,
the decision of the court is based, or on the test or
abstract, of the specific peculiarities of the particular
case, which finally gives rise to the decision. (Vide:
Smt. Somavanti & Ors. v. The State of Punjab & Ors.,
AIR 1963 SC 151: Ballabhdas Mathuradas Lakhani &
Ors. v. Municipal Committee, Malkapur, AIR 1970 SC
1002; Ambika Prasad Mishra v. State of U.P. & Ors., AIR
1980 SC 1762; and Director of Settlements, A.P. & Ors.
v. M.R. Apparao & Anr., AIR 2002 SC 1598).”
Hence, the argument of the learned senior counsel that Bhagwan Dass is
per incuriam and will not bind us has no substance and must be rejected.
Bhagwan Dass may not refer to Tahsildar (supra) but State of Kerala v.
Babu specifically refers to it and holds as reproduced above. There is no
conflict between Bhagwan Dass and Babu (supra) and both take the same
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