Bombay High Court

Raju S/O. Haridas Khelkar vs The State Of Maharashtra Thr. The ... on 6 October, 2017

Bench: Ravi K. Deshpande

              cri wp763.17                                          1

                          IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                                    NAGPUR BENCH : NAGPUR.


                                Criminal Writ Petition No. 763 OF 2017

               PETITIONER:                                        Raju   s/o   Haridas   Khelkar,   Aged   33
                                                                  years,   Occ:   Labour,   R/o   Rajiv
                                                                  Gandhi   Nagar,   Shastrakar   Layout,
                                                                  Chandrapur.
                                                                                                               
                                                           -VERSUS-

               RESPONDENT:                                        The   State   of   Maharashtra,   through
                                                                  the   Police   Station   Incharge,   Ram
                                                                  Nagar Police Station, Chandrapur. 

               

              Shri. H.V. Thakur, Advocate for the Petitioner.
              Mrs. S.S. Jachak, A.P.P. for State.
              ---------------------------------------------------------------------------------
                              CORAM: R.K.DESHPANDE, J.

DATED: 06/10/2017

Oral Judgment

1] Rule, made returnable forthwith. Heard finally by

consent of the learned counsel appearing for the parties.

2] The learned Additional Sessions Judge,

Chandrapur in Special (POCSO) Case No. 29 of 2014 has

passed an order on 09.03.2017 (Exhibit No.19) rejecting the

application filed by the accused for grant of permission to

refer the testimonies of witnesses recorded before the

Magistrate prior to committal of the case to the Special Court,

for the purposes of contradiction. The Court has held that the

witnesses can be contradicted only when their statement is

recorded by Police under Section 161 of Criminal Procedure

and there is no provision for using the statement previously

recorded by committal Court, to contradict the witnesses. It

holds that the accused has opted for de novo trial and the

testimonies of the witnesses are washed out and therefore

such course is not permissible.

3] The accused was prosecuted for the offences

punishable under Sections 354 and 506 of the Indian Penal

Code. The trial was over and at the time of delivering the

judgment, the learned Magistrate found that the charges

under Sections 7 and 8 of Protection of Children from Sexual

Offences Act are required to be added. The accused was

asked for the option, which he exercised for de novo trial by

filing Pursis at Exhibit 14-A on 21/1/2017. The trial was

committed to the Sessions Court. During the course of trial

before the Special Court, the accused sought permission to

refer the testimonies of the witnesses recorded before the

Committal Court for the purposes of contradiction.

4] The question involved is, whether it is permissible

under Section 145 of the Indian Evidence Act to use such

statements recorded by the Magistrate, to contradict the

witnesses before the Sessions Court, upon exercise of the

option by the accused for de novo trial.

5] In the decision of this Court in the case of

Emperor v/s Pranshankar Shambhuram Raval and another

reported in AIR 1950 Bombay 14, it is held in para No.3 as

under:-

3. As therefore the whole evidence of a witness who is re-summoned is to be recorded again, his previous deposition before another Magistrate cannot be treated as substantive evidence in the case, although it may be used for contradicting any fresh evidence given by him under S.145, Evidence Act. The object with which the right has been given to the accused to demand that the witnesses previously examined should be re-called and reheard is that fee may, if he considers that he would otherwise be prejudiced, ask the Magistrate to form his own opinion about the credibility of those witnesses, whom he regards as material, and to base his decision on their evidence as recorded before him. As observed by Burn J. in Mudda Veerappa, v. Emperor, AIR (22) 1935 Mad 318 at p.319: (36 Cr.LJ1265):

6] Relying upon the aforesaid decision, the learned

Single Judge of Gujarat High Court in the case of Ushmaben

Dineshbhai Gohel v/s State of Gujarat and another, delivered

on 04/09/2015 in Criminal Misc. Application No.15654 of

2012, considered the question as to whether the deposition

of the complainant recorded by the predecessor Court

becomes inadmissible or non-existent on account of de novo

trial. In paragraph Nos. 31 and 32 of the said decision, it is

held as under:-

"31. In my view, what is prohibited under Section 326 (3) is consideration of the evidence recorded by the predecessor Court. To put in other words, when a case is tried as a summary case, a Magistrate, who succeed the Magistrate who had recorded the part or whole of the evidence, cannot act on the evidence so recorded by his predecessor. This, however, should not be construed as whenever the successor Court orders a de novo trial, the statement of the complaint and his witnesses recorded by the predecessor Court cannot be used for contradicting the complainant and his witnesses. Their previous statements do not become inadmissible or non- existent on account of the de novo trial.

32. I am of the view that the statements of the complainant or the witnesses recorded by the predecessor Court are former statements of the complainant and the witnesses who are subsequently examined after the de novo trial, though in the same proceedings. This statement can be used for contradiction under Section 145 of the Evidence Act. There is no logic in the contention that because of a do novo trial, such statement must be treated as if non- existent or inadmissible."

7] The decision of the Orissa High Court in the case

of Brahma Naik V/s Ram Kumar Agarwalla and others

reported in 1974 CRI.L.J. 567 (V 80 C 191), wherein it is

held in paragraph no.3 as under:-

"3. The first contention that the evidence recorded by the predecessor Assistant Sessions Judge is wholly in- admissible and is non est and cannot be utilised even to contradict the statements of the same witnesses before the successor Judge in the same proceeding is a fantastic contention which has no legal sanction. Under Section 145 of the Evidence Act a witness may be cross- examined as to previous statements made by him in writing or reduced to 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.

The statements of the prosecution witnesses recorded by the predecessor Assistant Sessions Judge are former statements of the witnesses who were subsequently examined after the de novo trial, though in the same proceeding. These statements can be used for contradiction under Section 145 of the Evidence Act. There is no logic in the contention that because there was a de novo trial those statements must be treated as if non- existent or inadmissible".

8] In the decision of the Full Bench of Allahabad

High Court in the case of Jwala Mohan and others v/s The

State reported in AIR 1963 Allahabad 161, it has been held

as under:-

"The third exception is that the evidence given before the Magistrate by a witness can be used to contradict him when he gives evidence at the sessions trial, vide section 145, Evidence Act. In the first two exceptions the evidence given before the Magistrate is treated as direct evidence of the facts stated therein and can be used for proving the offence; the use of the evidence in the third exception is of a negative character and it can be used only to demolish the effect of the evidence given at

sessions trial, not as direct evidence of the facts stated therein".

9] In the decision of the Apex Court in the case of

State of Rajasthan v/s Kartar Singh reported in AIR 1970 SC

1305, it is held in paragraph nos. 9 and 10 as under :-

"9. The objection taken to the admissibility of the statement was that every single passage which differed from her testimony in the Court of Session was not put to her with a view to affording her an opportunity of explaining why she had made a contrary statement. No doubt, if there were some passages here and there which differed from her later version, that procedure would have been necessary. Here the witness admitted that her statement was truly recorded in the Committal Court. She only denied that it was a true statement because she said that she was made to depose that way by the police. It would have been useless to point out the discrepancies between the two statements because her explanation would have been the same. In these circumstances, the requirements of Section 145 of the Indian Evidence Act were fully complied with and the earlier statement would be read as evidence in the Sessions Trial.

10. In our judgment, there was sufficient compliance with Section 145 of the Indian Evidence Act in his case also. It would have been pointless to draw his attention to each sentence and ask his explanation because the explanation would have been the same it was false and given under pressure of police".

10] Shri Thakur, the learned counsel has further relied

upon the Division Bench judgment of this Court in the case of

Ramdas Srinivas Nayak vrs. Abdul Rehman Antulay and

another reported in 1993 (1) Bom. C.R. 185, to urge that

what is relevant under Section 145 of Evidence Act is the

previous statement made by the witness, whether it be before

the Court having jurisdiction or without jurisdiction. The

relevant portion of para 21 of the said decision is reproduced

below.

"21. It was further submitted that in any case in view of the decision of the Apex Court, the High Court Judge or Judges who recorded the evidence of the various witnesses had no jurisdiction and as such the said deposition cannot be utilised as previous statement for the purpose of contradicting the witnesses under the provisions of section 145 of the Evidence Act. In that behalf it is necessary to notice that so far as section 145 of the Indian Evidence Act is concerned, what is relevant is the previous statement and the section no where puts any other limitation with reference to such previous statement, excepting that it has to be in writing or reduced into writing. Difference between the provisions of section 145 and section 157 of the Indian Evidence Act, is very relevant on this aspect. Under section 157 in order to corroborate the testimony of the witness, any former statement made by such witness relating to the same fact at or about the time when the fact took place, or before any authority legally competent to investigate the fact, may be proved, whereas under section 145 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. In our opinion it is not necessary that the previous statements have to be before the person having jurisdiction in the matter or before the person legally competent to record the statements. The fact that the witness has made previous statement only is relevant in that behalf. Reliance placed on behalf of the complainant on the decision of the Patna High Court reported in A.I.R. 1946 Patna 82, (Ramkrishun Sao and others v. Experor), is justified. The Division Bench of the Patna High Court in the aforesaid case has held as under:

"Previous statement of a witness reduced to writing can be used in cross-examination under section 145

but the section does not lay down that the writing which is to be used for the purposes of cross- examination must be by a person having jurisdiction to reduce that statement to writing.

Therefore, even though the previous statements of a witness recorded by a Special Magistrate under the Special Criminal Courts Ordinance 2(2) of 1942, must on the declaration of that Ordinances as illegal be taken to have been recorded by a Magistrate who had no jurisdiction to record the same, the statements can still be used under section 145 for the purpose of cross-examining the witness"

11] The learned A.P.P. Mrs. Jachak has urged that

under Section 145 of the Evidence Act it is only the statement

recorded under Section 161 or in police diary under Section

172 before the investigating officer and the statement

recorded under Section 164 before the Magistrate, which can

be used for contradicting the witnesses and the previous

statement recorded by way of evidence before the Magistrate

cannot be used in the case of de novo trial. It is the

contention of Mrs. Jachak that at the most the previous

statement recorded in the examination-in-chief can be put to

a witness and the statement in cross examination cannot be

used to contradict the witness. The learned APP Mrs.

Jachak also relied upon the decision of the Apex Court in the

case of Hazari Lal vrs. State (Delhi Administration) reported

in (1980) 2 SCC 390. (emphasis supplied) Para 8 of the

decision relied upon is reproduced below.

"8.The learned counsel was right in his submission about the free use made by the Courts below of statements of witnesses recorded during the course of investigation. Section 162 of the Code of Criminal Procedure imposes a bar on the use of any statement made by any person to a Police Officer in the course of investigation at any enquiry or trial in respect of any offence under investigation at the time when such statement was made, except for the purpose of contradicting the witness in the manner provided by s.145 of the Indian Evidence Act. Where any part of such statement is so used any part thereof may also be used in the re- examination of the witness for the limited purpose of explaining any matter referred to in his cross-examination. The only other exceptions to this embargo on the use of statements made in the course of an investigation, relates to the statements falling within the provisions of s. 32(1) of the Indian Evidence Act or permitted to be proved under s. 27 of the Indian Evidence Act. S.145 of the Evidence Act provides that a witness may be cross-examined as to previous statements made by him in writing and reduced into writing and relevant to matters in question, without such writing being shown to him or being proved but, that 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. The Courts below were clearly wrong in using as substantive evidence statements made by witnesses in the course of investigation. Shri H. S. Marwah, learned counsel for the Delhi Administration amazed us by advancing the argument that the earlier statements with which witnesses were confronted for the purpose of contradiction could be taken into consideration by the Court in view of the definition of "proved" in section 3 of the Evidence Act which is,

A fact is said to be proved when, after considering the matters before it, the Court

either believes it to exist or considers its existence so probable that a prudent man, ought, in the circumstances of the particular case to act upon the supposition that it exists.

We need say no more on the submission of Shri Marwah except that the definition of proved does not enable a Court to take into consideration matters, including statements, whose use is statutorily barred.

The learned counsel has relied upon the portion which is

emphasized to urge that the only other exception to this

embargo on the use of statements made in the course of an

investigation relates to the statements falling within the

provisions of Section 32(1) of the Indian Evidence Act or

permitted to be proved under Section 27 of the Evidence Act.

12] Shri Thakur, the learned counsel appearing

for the petitioner has relied upon the decision of the then

Division Bench of the Delhi High Court in the case of Ripen

Kumar vrs. Department of Customs, reported in 2001

Cri.L.J. 1288, wherein it is held in paragraph 9 as under;

"9. By the impugned order the learned Additional Sessions Judge surprisingly came to the conclusion that even the said incomplete statement of PW-1 should have been read in evidence. It ought to have been looked into as a supporting evidence to the statement recorded under Section 108 of the Customs Act. This observation of the learned ASJ is contrary to the well understood expression of the word "evidence". The words "all statements" include

the examination-in-chief as well as the cross examination and subject to the permission re- examination also. It is only when the witness is permitted to be cross-examined that the credibility of the witness can be looked into. The emphasis is on the fact that the witness had been cross-examined fully. Only thereafter the evidence given by a witness in judicial proceeding is relevant for the purpose of proving a particular fact. But if the witness has not been permitted to be cross-examined then such a statement cannot be termed as an evidence of the witness nor can it be read in evidence. It must be remembered that where part cross-examination took place such a statement cannot be called evidence in the eyes of law. The procedure as laid down under the Evidence Act is clear and unambiguous. Under the Evidence Act, evidence means the examination-in-chief and cross-examination. That statement alone will form evidence. In the present case petitioner had been deprived to cross-examine PW-1 thereby dislodge his testimony. Hence incomplete statement of PW- 1 in the absence of cross-examination could not be treated as evidence nor the same could be relied upon. Therefore the observation of learned ASJ that incomplete statement could have been the basis of deciding the question of charge is contrary to law. Part statement of PW- 1 did not attain the status of evidence, nor on the basis of the same it could be said that statement of the accused recorded under Section 108 of the Customs Act stood proved"

13] The position of law from the aforesaid

decision appears to be very clear on the provision of Section

145 of the Evidence Act, which is reproduced below;

145. Cross-examination as to previous Statements in writing

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 its which are to be used for the purpose of contradicting him .

The provision states that the witness may be cross examined

as to "previous statement" made by him "in writing" or

"reduced into writing" and relevant to the 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 its which are to be used for the purpose of

contradicting him.

14] The language employed under Section 145

is very wide and irrespective of the fact whether the

statement is made under Section 161, 164 or 172 of Criminal

Procedure Code, it can be used for the purpose of