Calcutta High Court (Appellete Side)

Pradip Kumar Sengupta vs Indrajit Sengupta on 30 April, 2021

                                      1



                   IN THE HIGH COURT AT CALCUTTA
                  CRIMINAL REVISIONAL JURISDICTION
Present:
THE HON'BLE JUSTICE JAY SENGUPTA
                            C.R.R. 3755 Of 2017
                          Pradip Kumar Sengupta
                                   Versus
                             Indrajit Sengupta


Petitioner in person            : Mr. Pradip Kumar Sengupta



For the Opposite Party No. 1 : Mr. Anand Keshri

                                 Mr. Abhijit Sarkar

                                 Mr. Abhik Chitta Kundu

Heard on                       : 26.02.2021

Judgment on                     : 30.04.2021




JAY SENGUPTA, J:


1.

This is an application challenging an order dated 16.08.2017 passed

by the learned Chief Judicial Magistrate, Hooghly in Case No. C.R. 161 of

1992 under Sections 409, 468 and 471 of the Penal Code, thereby

dismissing the petitioner's applications dated 04.08.2016 and 29.08.2016.

2. The petitioner appearing in person submitted as follows. The

petitioner was the complainant in this case. He filed a petition dated

04.08.2016 before the learned Trial Court, inter alia, stating that in spite of

raising of objections by him, the defence was cross-examining him on the

statement made by him under Section 200 of the Code. On this statement,

the accused had no role to play. As such, the defence should not cross-

examine him on matters stated by him in his initial deposition under

Section 200 of the Code. Reliance was placed on a judgment of the Hon'ble

Apex Court in Tahsildar Singh and Anr. vs. State of UP, AIR 1959 SC 1012

and it was submitted that it would be doing violence to the language of the

proviso to Section 145 of the Evidence Act if the prior statement be allowed

to be used for the purpose of cross-examining a witness within the meaning

of the first part of Section 145 of the Evidence Act. Reliance was also placed

on the decision of the Hon'ble Apex Court in Chinnammal vs. State of Tamil

Nadu and Ors., (1997) 1 SCC 145 in this regard. A similar prayer was made

again on 29.08.2016.

3. Learned Counsel appearing on behalf of the accused/opposite party

submitted as follows. The decisions relied upon by the petitioner had no

relevance in this case. The law on this point was very clear that if a witness

was to be contradicted with his previous statement in writing or reduced

into writing, then the same had to be brought to the notice of the concerned

witness. This was the only requirement and nothing else. There was no bar

whatsoever on cross-examining the petitioner in respect of the initial

deposition given by him under Section 200 of the Code. Right to cross-

examine a witness cannot be curtailed in any manner. The learned Trial

Court passed a reasoned order and quite rightly dismissed the petition

dated 04.08.2016.

4. I heard the submissions of the complainant/petitioner appearing in

person and the learned counsel for the accused/opposite party and perused

the revision petition.

5. Section 145 of the Evidence Act may be quoted as under:

"Section 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 it which are to be used for

the purpose of contradicting him."

6. There are two parts to the said provision. The first part requires that in

the event a witness is cross-examined as to a previous statement made by

him in writing or reduced into writing and relevant to the matters in

question, the same may be done without such writing be shown to him or

being proved. The second part provides that if it is intended to contradict the

witness 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.

7. Therefore, if the defence wants to cross-examine the complainant in

respect of his previous statement in order to contradict him, the only

requirement is that his attention must be called to those parts which are to

be used for such purpose. It is thus amply clear that there is no absolute

bar on cross-examining a witness on his previous statement in writing or

reduced into writing, in order to contradict him.

8. In Tahsildar Singh's case (supra), a Constitution Bench of the Hon'ble

Apex Court, inter alia, held as under:

"The procedure prescribed is that, if it is intended to contradict a

witness 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 proviso to Section 162 of the Code

of Criminal Procedure only enables the accused to make use of such

statement to contradict a witness in the manner provided by Section

145 of the Evidence Act. It would be doing violence to the language of

the proviso if the said statement be allowed to be used for the purpose

of cross-examining a witness within the meaning of the first part of

Section 145 of the Evidence Act. Nor are we impressed by the

argument that it would not be possible to invoke the second part of

Section 145 of the Evidence Act without putting relevant questions

under the first part thereof. The difficulty is more imaginary than

real."

9. In Chinnammal's case (supra), the Hon'ble Supreme Court, inter alia,

held as under:

"It is trite that a case has to be decided on the basis of the evidence

adduced by the witnesses during the trial and any previous

statements made by any of such witnesses can be used by the defence

for the purpose of only contradicting and discrediting that particular

witness in the manner laid down in Section 145 of the Evidence Act.

Under no circumstances can such previous statements be treated as

substantive evidence as has been treated by the High Court in the

instant case. In view of these well-settled principles of law, the High

Court was first required to consider the statements made by the

prosecution witnesses during trial and decide for itself whether those

statements should be relied upon in view of their contradictions (if

any) with their earlier statements, provided those contradictions had

been brought on record under Section 145 of the Evidence Act, 1872."