STATE OF GUJARAT v. MOHAN HIRA — 1960 DIGILAW 18 (GUJ)

V. B. RAJU, J. ( 1 ) THIS is a reference by the learned Additional Sessions Judge Gondal recommending that the order dated 18-7-59 passed by the First Class Magistrate Gondal in Criminal Case No. 190 of 1959 holding that he would not allow the prosecution to contradict the evidence given by its witness under the proviso to sec. 162 (1) Cri. Procedure Code without declaring him hostile and save in his cross-examination be set aside as it is wrong. ( 2 ) SEC. 137 of the Evidence Act provides that the examination of a witness by the party who calls him shall be called his examination-in-chief and the examination of a witness by the adverse party shall be called his cross examination. Sec. 142 of the Evidence Act provides Leading questions must not if objected to by the adverse party be asked in a examination in-chief or in a re-examination except with the permission of the Court. Sec. 143 of the Evidence Act provides that leading questions may be asked in cross-examination. Sec. 154 of the Evidence Act provides:- The Court may in its discretion permit the person who calls a witness to put any questions to him which might be put in cross-examination by the adverse party. The procedure of examining a witness as to previous statements made by him in writing is found in sec. 145 of the Evidence Act. Sec. 146 of the Evidence Act enumerates the questions which are lawful in cross-examination. ( 3 ) AS provided in sec. 154 of the Evidence Act the Court may in its discretion permit the person who calls a witness to put-any questions to him which might be put in cross-examination by the adverse party. When the Court exercises such a discretion the party who calls a witness may put questions in the nature of cross-examination although the witness is under examination by the party who calls him. But there is nothing in sec. 154. of the Evidence Act to require that be fore the Court exercises its discretion to permit the person who calls a witness to put questions in the nature of cross-examination the witness should be declared as hostile by the party calling him. But there is nothing in sec. 154. of the Evidence Act to require that be fore the Court exercises its discretion to permit the person who calls a witness to put questions in the nature of cross-examination the witness should be declared as hostile by the party calling him. But although the party calling a witness need not declare the witness to be hostile he should give sufficient reasons to satisfy the Court that it is proper in the circumstances to exercise its discretion and permit the person who calls a witness to put questions to him in the nature of cross-examination. The learned Magistrate was therefore wrong in laying down a requirement which is not found in the Evidence Act. He was therefore wrong in ordering that unless the prosecution declares its witness hostile it would not be permitted to contradict him under the proviso to sec. 16 2 (1) Cri. Procedure Code. (4) Moreover when permission is given under sec. 154 of the Evidence Act the party calling a witness is permitted to put questions which might be put in cross-examination by the adverse party but that does not alter the nature of examination and the party who calls a witness can contradict him only in the manner as provided in sec. 145 of the Evidence Act. Merely because permission is given under sec. 154 of the Evidence Act the nature of the examination of a witness by the party who calls him is not changed from examination-in-chief to cross-examination. It is true that in the proviso to sec. 162 (1) it is provided. "when any witness is called for the prosecution it such inquiry or trial whose statement has been reduced into writing as aforesaid any part of his statement of 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 sec. 145 of the Indian Evidence Act 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. 145 of the Indian Evidence Act 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. " ( 4 ) ORDINARILY the statements of a person taken in the course of investigation by the police are used by the accused to contradict the evidence given by the witness in his chief-examination. They could also be used with the permission of the Court by the prosecution to contradict its witnesses. The contradiction must be in the manner provided in sec. 145 of the Evidence Act which requires that the attention of the witness should be drawn to those parts of his statement in writing which are to be used for the purpose of contradiction him. When an accused person uses the police statement of a witness to contradict his evidence the prosecution can in the re-examination of such witness use any part thereof for explaining any matter referred to in the cross-examination of the prosecution witness by the accused. The word cross-examination found at the end of the proviso to sec. 162 (1) Cri. P. C. refers to the cross-examination of a witness by the accused and not to the questions put under sec. 154 of the Evidence Act. If a party who calls a witness is permitted under sec. 154 of the Evidence Act to put questions to him in the nature of cross-examination the examination of the witness in which such questions are asked and answered still remains the examination-in-chief and it would be open to the adverse party in cross examination to explain any matter referred to in the answers given to questions put under sec. 154 of the Evidence Act. It is therefore clear that the answers to questions put to a witness after permission is obtained by the party who calls him are answers given in the examination-in-chief although they party in the nature of cross-examination. The proviso to sec. 162 (1) Cri. P. C. does militate against this view. The learned Magistrate was therefore rogue in holding that except in the cross-examination the prosecution would not be entitled to contradict the statement of its witness under the proviso to sec. 162 (1) of the Criminal Procedure Code. The proviso to sec. 162 (1) Cri. P. C. does militate against this view. The learned Magistrate was therefore rogue in holding that except in the cross-examination the prosecution would not be entitled to contradict the statement of its witness under the proviso to sec. 162 (1) of the Criminal Procedure Code. For these reasons the order of the learned Magistrate is erroneous. (5) I therefore set aside the order of the Magistrate. But before permission is granted by the Magistrate under sec. 154 of the Evidence Act there must be good grounds for doing so and the prosecution must satisfy the Court that there are good grounds for doing so. Reference Accepted. .