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Report No. 37

452. Section 162 and suggestion to substitute "cross-examination" for "contradiction".-

It has been suggested1 in one Bill, that in section 162 of the principal Act, in the proviso to sub-section (1), after the words "may be used by the accused", the words "to cross-examine such a witness" shall be inserted.

This suggestion seeks to widen the scope from "contradiction" (which is at present mentioned) to "cross-examination" (which is wider). The main object of the amendment is to cover omissions.2

We considered the matter at length. In our view, no such change is necessary.

The discussion in Tahsildar Singh's case3-4 itself shows, that it is not possible to boil down the question (how far "omissions" are contradictions) to a short and neat formula. Nor do we consider it necessary to make the scope of the section wider than has been interpreted by the Supreme Court in that case.

1. F. 3(2)/55-L.C., Pt. VII, S. No. 407 (Shri K.V. Raghunath Reddy's Amendment Bill) (Rajya Sabha Bill 11 of 1963).

2. See Rajya Sabha Debates, 3rd September, 1965, Cols. 207-211 (Speech of Shri K.V. Raghunatha Reddy).

3. Tahsildar Singh, (1959) Suppl 2 SCR 875: 1959 SC 1012.

4. See also Dahybhai, AIR 1964 SC 1563 (1569).

453. Section 162(1) proviso, and Court witnesses.-

With reference to section 162, the following suggestion1 has been made by the Public Prosecutor, West Godavari, Andhra Pradesh.

"In the proviso to sub-section (1) of section 162, for the words "called for the prosecution", the words "examined in the Court" should be substituted."

The reason given in support of the suggestion is this: A witness becomes hostile to the prosecution. If the prosecution gives up the witness and if he is examined as a Court witness, his statement cannot be put to him and contradicted. This amendment is intended to remove the anomaly. (The suggestion also says, that the decision of the Andhra Pradesh High Court may be seen).

We have examined the suggestion.

The Andhra Pradesh decision is noted below.2 The matter was discussed in recent Bombay case,3 where also the same view was expressed, namely, that a court witness cannot be cross-examined under section 162(1), proviso. We do not, however see any need for extending the proviso as suggested. The suggested draft, moreover, goes much beyond the object in view, as it would cover defence witnesses also.

No change is, in our opinion, necessary.

1. F. 3(2)/55-L.C., Pt. III, S. No. 50(v).

2. Kotti Reddy (in re:), AIR 1960 AP 76.

3. State v. Bhanuprasad, AIR 1966 Bom 378 (379), para. 8 (October issue).

454. Section 162(1) proviso, and omissions.-

Section With reference to the proviso to section 162(1), we have carefully considered the suggestion1 of a High Court Judge to clarify the question whether the expression "contradiction" includes omissions. The answer to the question, we believe, depends on facts. It appears to us that it is not possible to lay down a rule one way or the other.

1. F. 3(2)/55-L.C., Pt. II, S. No. 33(a).

455. An "omission" can be regarded as a contradiction only where the omission, by necessary implication, can be deemed to be a part of the statement. The matter is discussed at length in a Supreme Court Judgement,1 which, while laying down the law to that effect, made it clear that the examples which it gave were not intended to be exhaustive.

1. Tahsildar Singh v. State of Uttar Pradesh, AIR 1959 SC 1012 (1026).

456. Section 162(1) and suggestions regarding presence of counsel.-

A High Court1 has suggested the addition of a second proviso to section 162(1) as follows:-

"Provided further that when it is necessary for a police officer to examine an accused person during the course of investigation and he is proceeding to do so, he shall inform the accused that if the accused desires, the examination will be conducted and any record made in the presence of the advocate of the accused; he shall be further bound to afford a reasonable opportunity to the accused to send/for his advocate and to have his presence."

The reasons given by the High Court for the proposed provision are stated below-

(1) The above provision will put an end to the abuses connected with section 27 of the Indian Evidence Act, and to the unlawful detention of the accused person in police custody. In England, such reasonable opportunity is given. "There is no reason why in India the members of the Bar should be credited with a double dose of the original sin and their presence be considered as polluting the investigation or hampering the investigation."

(2) Many of the criticisms that have become the staple food of the Bar, will disappear. The accused persons will be able to set up proper defence, which if, investigated, might exculpate them. The investigation will become purer, and public cooperation will be increasing.

1. F. 3(2)/55-L.C., Pt. III, S. No. 52 (p. 301, Correspondence).

457. A somewhat similar suggestion1 has been made by a Bar Council. The suggestion has been made under section 167, but really pertains to section 162. The Bar Council has suggested, that section 167 should contain a provision enabling the accused to have legal aid when he is in police custody.

Comments of the State Government concerned, (on this suggestion) are as follows:-

"In view of the specific provision in Article 22(1) of the Constitution, it may not be in order to make specific provision refusing lawyers to appear on behalf of arrested persons. There is, however, no need either to specifically provide in the Code that the accused should be entitled to legal aid while in police custody , as even otherwise such legal aid cannot be shut out in view of the specific provision inside 22(1)".

1. F. 3(2)/55-L.C., Pt. III, S. No. 52 (p. 284, correspondence portion).

458. We considered carefully the above suggestion, and the comment of the State Government thereon.

The following points were urged before us-

(a) Article 22(1) of the Constitution, no doubt, provides for the situation, in substance, but it appears desirable to put the matter emphatically in the Code. The proposed provision, if inserted, will supplement section 340 of the Code, which, applies to a person accused of an offence before a criminal court;

(b) Relevant portion of Article 22(1) is as follows:-

"No person who is arrested, shall be denied the right to consult a legal practitioner of his choice and to be defended by a legal practitioner of his choice".

It was urged before us, that the right to consult a legal practitioner would be ineffective if consultation is not available when the most important steps in investigation are being taken. It was stated, that the very fact that the Constitution gives the person arrested a right to legal advice before the trial and as soon as he is arrested, implies, or at least renders it desirable, that the assistance of counsel must be available at the stage in question.

We are, however, in doubt if Article 22 necessitates such a change. It is also our view, that it is against the principle of investigation to bring in counsel at this stage. We do not, therefore, recommended any change in this respect.

459. Section 162-Various other suggestions.-

Various other suggestions1-3 to amend section 162 were considered by us, but have not been found acceptable to us. It is unwise to make these statements corroborative or contradictory evidence as has been suggested. If (as is stated) cases fail because of witnesses retracting from their statement under section 162, that is no ground for changing a very salutary provision.

1. F. 27(3)/55-Judl. II (Home Ministry File), Appendix I, Item No. 31.

2. F. 27(5)/54-Judl. (Home Ministry File), Appendix II, Item No. 16.

3. F. 3(2)/55-L.C., Pt. I, S. Nos. 26, 34, and 18.

460. Section 163(2).-

Regarding section 163(2), the case-law reveals1 a discrepancy between section 163(2) and section 164. It should, therefore, be made clear that section 163(2) is subject to the provisions of section 164(3).

1. For detailed discussion, see Appendix 13.



Code of Criminal Procedure, 1898 (Sections 1-176) Back




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