State of
Kerala Vs. Babu & Ors [1999] INSC 181
(4 May 1999)
S.N.Hegde,
G.B.Pattanaik SANTOSH HEGDE, J.
In a
pending Sessions Case, on behalf of the accused persons, applications were made
to summon the case diary of a case registered as Cr. No.81/91 for confronting a
witness with his previous statement as found in the said case diary and to
recall the said PW-5. The learned Sessions Judge allowed the said applications
which came to be challenged in criminal petitions filed before the High Court
of Kerala by the State as well as the brother of the deceased. These petitions
came to be dismissed by an Order of the High Court dated 17th August, 1993. Both the Sessions Court and the
High Court held that there is no bar in law to summon the case diary of a case even
other than the one which is being tried, for the purpose of contradicting the
evidence of the prosecution witnesses. In this appeal by special leave, the
State of Kerala has raised the following questions
of law :
(a)
Whether the Statement of a witness recorded u/s.
161 of
Cr.P.C. in one particular crime could be used against that witness in any other
trial enquiry or proceedings by the accused. (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.
It is
contended on behalf of the appellant that the case diary sought to be summoned
being a case diary not of the case which is being tried in the sessions trial
under Section 172 of the Code of Criminal Procedure (hereinafter referred to as
the Code), it is impermissible for the court to summon the case diary nor the
statements recorded therein could be permitted to be used for contradicting a witness
who is being examined in a trial arising out of a totally different case. On
behalf of the respondents, it is contended that any prior statement of a
witness can be used for the purpose of contradicting a witness as provided for
in Section 162 of the Code and Section 145 of the Evidence Act. It was
contended that in view of the fact that those provisions having been enacted
for the benefit of the accused, a liberal construction should be given to the
provisions of Section 172 of the Code. Reliance was placed upon a judgment of
the High Court of Calcutta rendered in Bihar & Ors. (1981 2 SCC 493). The
brief facts necessary to appreciate the contentions of the parties in this
appeal are as follows :
In the
course of trial of Sessions Case No.157/92, on the file of the Sessions Judge
at Thrissur, it was noticed by the defence that on the very day of the incident
which was subject matter of the sessions case, there was another crime
registered in Cr.No.81/91 and in that during the course of investigation, a statement
of the witness who is being examined in the sessions case as PW-5, was recorded
under Section 161 of the Code which, the defence has contended, contradicts the
statement made by PW- 5 in the course of the sessions trial. Therefore, for the
purpose of establishing the contradiction in the evidence of PW-5 and in order
to impeach the said witness, the defence wanted the case diary in Crime
No.81/91 to be summoned with a consequential prayer for recalling PW-5. This
prayer to summon the case diary of Crime No.81/91, having been allowed, the
above controversy has arisen primarily based on the language of Section 172 of
the Code.
Before
examining the applicability of Section 172 of the Code, we will first consider
the right of an accused to cross-examine a witness with reference to the
previous statement of a witness in a trial. Section 145 of the Evidence Act provides
:- A witness may be cross-examined as to previous statements made by him in
writing or reduced into writing, and relevant to matters in question, without
such writing being shown to him, or being proved; but if it is intended to
contradict him by the writing, his attention must, before the writing can be
proved, be called to those parts of it which are to be used for the purpose of
contradicting him.
A
perusal of this Section shows that this Section permits the cross-examination
of the witness in any trial, with reference to his previous statement, to
establish a contradiction and the manner in which such contradictions can be
established. Section 155 of the Evidence Act provides that the previous
statement of a witness can be made use of during the cross-examination 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. 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. The proviso which which actually controls the use of
Section 162 of the Code reads thus :- Provided that when any witness is called
for the prosecution in such inquiry or trial whose statement has been reduced
into writing as aforesaid, 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 (I of 1872); and when any part of such statement is so used,
any part thereof may also be used in the re- examination of such witness, but
for the purpose only of explaining any matter referred to in his cross-
examination.
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 Section 145 of the Evidence Act. The object of enacting
Section 162 is noticed by this Court in (AIR 1959 SC 1012) wherein it was held thus
:
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.
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 Section
which includes the previous statement recorded under sub-section (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; more so, in regard to the statements recorded by the
investigating 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. Therefore, we will now examine
the contention of the State with reference to Section 172 of the Code which
Section reads thus :
172.
Diary of proceedings in investigation.- (1) Every police officer making an
investigation under this Chapter shall day by day enter his proceedings in the
investigation in a diary, setting forth the time at which the information
reached him, the time at which he began and closed his investigation, the place
or places visited by him, and a statement of the circumstances ascertained through
his investigation. (2) Any Criminal Court may send for the police diaries of a
case under inquiry or trial in such Court, and may use such diaries, not as
evidence in the case, but to aid it in such inquiry or trial. (3) Neither the
accused nor his agents shall be entitled to call for such diaries, nor shall he
or they be entitled to see them merely because they are referred to by the
Court; but, if they are used by the police officer who made them to refresh his
memory, of if the Court uses them for the purpose of contradicting such police
officer, the provisions of Section 161 or Section 145, as the case may be, of
the Indian Evidence Act, 1872 (1 of 1872), shall apply.
Sub-section
(1) of the above Section mandates that every police officer making an investigation
shall maintain a case diary of that case in which among other entries, shall
maintain the statements of the witnesses examined by him during the course of
his investigation. Sub-section (2) of the same Section empowers a criminal
court to send for such police diaries of a case under inquiry or trial in such
Court, (emphasis supplied) and permits the use of such diaries, not as evidence
in the case, but to aid it in such inquiry or trial. The words used in
sub-section (2) of Section 172, more particularly police diaries of a case
under inquiry or trial in such Court, indicates it is only that police diary in
which the concerned investigating officer had made entries of his investigation
and which pertains to the case being tried by the court alone can be sent for.
Sub-section (3) of Section 172 further imposes restrictions in the manner in
which such diaries can be used by the court. It also specifically bars the
right of an accused or his agent to call for such diaries. Thus, on a plain
language of this Section, it is clear that this Section cannot be used for the
purpose of summoning a case diary which does not pertain to the investigation
of the case which is being tried by the court. It also stands to reason because
so far as the accused is concerned in the case in which he is being tried, he
would have been supplied with all the documents referred to under Section 207
of the Code. Therefore, the question of he using the entries in the case diary
would not arise. Section 172 is specifically meant for the contingencies when
court finds it necessary to look into the case diary for the purpose of finding
an aid in the trial or for the purpose of assisting the police officer to
refresh his memory. Therefore, Section 172 does not contemplate summoning of
the case diary for the purpose of assisting the accused to have a look at the
previous statements of the witness for using it for his benefit, as
contemplated in Section 162 of the Code. The trial court and the High Court in
this case proceeded on the footing that there is no bar under the Code to
summon the case diary relating to the cases other than the one that is being
tried. Hence, placed reliance on Section 172 of the Code.
We are
unable to subscribe to that part of the finding of the courts below that the
source of power to summon the case diary of a case other than the one that is
being tried, emanates from Section 172 of the Code. Respondents have sought to
place reliance on a Division Bench judgment of the Emperor (AIR 1944 Cal. 243)
wherein the High Court observed thus :- Section 172 relates to the Police diary
made in respect of a case under enquiry or trial by the Court which calls for
it and therefore does not in terms apply where the diary relates not to the
case which was actually being tried by the Court but to the counter case, but
the principles set out in the section apply. There is no provision in the
Criminal Procedure Code which would prevent the Court from looking into the
diary of the counter case, or from using the diary in the counter case in the
way laid down in S.172(2).
These
observations of the court proceeded on the basis that there is no provision in
the Criminal Procedure Code which would prevent the court from looking into the
diary of the counter case or from using the diary in the counter case in the
way laid down in Section 172(2) of the Code. There can be no quarrel in regard
to the fact that there is no prohibition in the Criminal Procedure Code against
any court from looking into the diary of a counter case or from using the diary
of a counter case in the trial of another case.
But
this does not mean that the right of the court to summon the case diary of
another case is derived from Section 172 of the Code or by the application of
principles of Section 172 because ex facie Section 172 of the Code does not
help the accused in making use of a case diary. Therefore, we are of the
opinion that the judgment of the Calcutta High Court does not fully support the
case of the respondents.
On the
contrary, it is seen that this Court in Khatris case (supra) has observed thus
: It will thus be seen that the bar against production and use of case diary
enacted in Section 172 is intended to operate only in an inquiry or trial of an
offence.
which
also indicate the fact that Section 172 relates to summoning of the case diary
of a case which is under enquiry or trial only. The High Court in the impugned
judgment proceeded on the basis that a statement recorded by an investigating
officer in any case which was under investigation, being a statement made under
Section 161 of the Code, the same can be used for the limited purpose provided
under Section 162 of the Code read with Section 145 of the Evidence Act. There
can be no quarrel with this approach of the High Court in regard to the use of
the previous statements of a witness made in the course of another
investigation being used in the course of another criminal trial. This is
because, as seen from the observations of this Court in the case of Tahsildar
Singh (supra), the very object of enactment of Section 161 of the Code and
Section 145 of the Evidence Act is to create a right in the accused to make use
of the previous statements of the witnesses for the purpose of contradiction
and for impeaching the merit of the witness. This right has not been taken away
by Section 172 of the Code and, as noticed above, there is no prohibition in
regard to this right of the accused either under the Code or under the Evidence
Act.
But
the question for consideration is, how does the accused exercise this right
with reference to a previous statement of a witness made in another case which
is recorded by the investigating officer in that case under the provisions of
Section 161 of the Code. In our opinion, this right certainly does not flow
under Section 172 of the Code nor is the accused entitled to these previous
statements under Section 207 of the Code. But, this does not mean that the
accused is denied of his limited benefit of using the said previous statements
recorded during the course of another investigation. The answer to this
question, in our considered view, lies in Section 91(1) of the Code which reads
thus :
91.
Summons to produce document or other thing.- (1) Whenever any Court or any
officer in charge of a police station considers that the production of any
document or other thing is necessary or desirable for the purposes of any
investigation, inquiry, trial or other proceeding under this Code by or before
such Court or officer, such Court may issue a summons, or such officer a
written order, to the person in whose possession or power such document or
thing is believed to be, requiring him to attend and produce it, or to produce
it, at the time and place stated in the summons or order. (2) Any person
required under this section merely to produce a document or other thing shall
be deemed to have complied with the requisition if he causes such document or
thing to be produced instead of attending personally to produce the same. (3)
Nothing in this section shall be deemed --- (a) to affect Sections 123 and 124
of the Indian Evidence Act, 1872 (1 of 1872), or the Bankers Books Evidence
Act, 1891 (13 of 1891), or (b) to apply to a letter, postcard, telegram or
other document or any parcel or thing in the custody of the postal or telegraph
authority.
The
language of Section 91 is much wider than the language of Section 172 and by no
stretch of imagination it could be contended that the case diary maintained
under Section 172 of the Code is not a document as contemplated under Section
91(1) of the Code. If that be so and if the court comes to the conclusion that
the production of such document is necessary or desirable then, in our opinion,
the court is entitled to summon the case diary of another case under Section 91
of the Code de hors the provisions of Section 172 of the Code for the purpose
of using the statements made in the said diary, for contradicting a witness.
When a case diary, as stated above, is summoned under Section 91(1) of the Code
then the restrictions imposed under sub-sections (2) and (3) of Section 172
would not apply to the use of such case diary but we hasten to add that while
using a previous statement recorded in the said case diary, the court should
bear in mind the restrictions imposed under Section 162 of the Code and Section
145 of the Evidence Act because what is sought to be used from the case dairy
so produced, are the previous statements recorded under Section 161 of the
Code.
In
this view of the matter, in our opinion, a case diary of another case, not
pertaining to the trial in hand can be summoned if the court trying the case
considers that production of such a case diary is necessary or desirable for
the purpose of trial, under Section 91 of the Code. For the above reasons, this
appeal fails and the judgments impugned are confirmed though for a different
reason as indicated above.
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