Tuesday 14 April 2015

Whether prosecution can confront a witness on the basis of statement recorded U/S 162 of crpc?



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
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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