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1997 DIGILAW 673 (MP)

Gulam Hussain v. Parmanand Dabani

1997-10-01

T.S.DOABIA

body1997
ORDER T.S. Doabia, J. 1. A short question which has been raised in this revision petition is as to whether the statement recorded in proceedings under section 145 of the Code of Criminal Procedure, 1973 (hereinafter referred to as Code), before the police officer can be admitted in plaintiff's evidence. 2. Before noticing various judicial pronouncements on the subject, facts in brief be noticed as under : Gulam Hussain, the present petitioner filed a suit. This suit has been filed under section 12(1)(c) and (f) of the Madhya Pradesh Accommodation Control Act, 1961. The premises arc apparently non-residential. It is with regard to these very premises, it is stated that some proceedings were initiated under section 145, Criminal Procedure Code. Some statements were said to have been recorded by a police and the plaintiff wants to get them exhibited in his evidence. As per the plaintiff, the statements are signed by the parties and the Court below has permitted that certified copies to be placed on the record. These have, however not been exhibited. An application for summoning the original record was also filed. The requisite permission was granted. 3. What has led the plaintiff/petitioner to come to this Court is that the Court below has expressed an opinion that these statements can be used only for confronting the person as and when he appears in the witness-box, and the statements cannot be permitted to be brought on record as exhibits. It is this part of the order which is being challenged in this revision petition. It has also been highlighted that the persons whose statements have been recorded are also parties in the litigation. 4. The learned counsel for the petitioner has placed reliance on the decision reported as Bharat Singh v. Mst. Bhagirathi, AIR 1966 SC 405 . In this case, it was observed that if there is any admission, then that can be used as a substantive evidence and the argument that this can be used only for confronting a witness was said to be a wrong view of the matter. It was observed that the admissions duly proved are admissible evidence irrespective of the fact whether the party making them appeared in the witness box or not and whether such party when appearing as witness was confronted with those statements in case it made a statement contrary to those admissions. It was observed that the admissions duly proved are admissible evidence irrespective of the fact whether the party making them appeared in the witness box or not and whether such party when appearing as witness was confronted with those statements in case it made a statement contrary to those admissions. The above was a case where some stand was taken by the parties before the revenue authorities. 5. The other authority on which reliance has been placed is the one reported as Tapan Dass v. Sosti Dass, AIR 1986 Cal 390 . In this case, some admission was made that there was previous agreement for partition between the coparceners indicating as to how movable property was to be shared. This admission made in the agreement was held to be admissible. This again is not a case where any statement was made under the Criminal Procedure Code. 6. The other decisions on which reliance has been placed are : (i) Biswanath Prasad v. Dwarka Prasad, AIR 1974 SC 117 ; and (ii) Bhim Singh (dead) by L.Rs. and Anr. v. Kan Singh, AIR 1980 SC 727 . These decisions again do not deal with the question which has cropped up in the present revision petition. 7. The aforementioned decisions referred to above are with regard to the cases where admissions were made either in civil proceedings or while settling civil disputes. None of the authorities deal with a situation where any statement was made by a person before the police officer under Criminal Procedure Code. 8. On the basis of the above decisions, it is further contended that even statements recorded before the police officer can be relied upon, if there is any admission made therein. According to him, the only bar which is created is that when statements are made under section 161, Criminal Procedure Code, and according to the counsel the bar would operate only when these proceedings are sought to be used for the purposes when criminal proceedings are pending. According to him, the bar would again be limited and this would be applied where a case falls under Chapter XII of Criminal Procedure Code. He submits that when a person gives a statement before the police officer in proceedings under section 145, Criminal Procedure Code, then he is not an accused. According to him, the bar would again be limited and this would be applied where a case falls under Chapter XII of Criminal Procedure Code. He submits that when a person gives a statement before the police officer in proceedings under section 145, Criminal Procedure Code, then he is not an accused. Therefore, the bar contemplated by section 32(3) of the Evidence Act, 1872 or by section 161 of Criminal Procedure Code, would not be attracted. 9. The learned counsel for the respondents, however, concedes to only a limited extent. According to him, statements made under Chapter XII, Criminal Procedure Code, or in any proceedings made under Criminal Procedure Code, can be made use for confronting the person whose statement is being recorded. He is placing reliance on a decision of the Andhra Pradesh High Court reported as Malakala Surya Rao v. Gundapuneedi Janakamma, AIR 1964 AP 198 . This decision is indeed an authority for the proposition that the statement of witnesses recorded by a police officer and reduced in writing can be used in a civil proceeding under section 145 of the Evidence Act, 1872; meaning thereby that a witness can be confronted with the statement which he has made before the police officer. The Andhra Pradesh High Court took note of the view expressed by a Division Bench of the Patna High Court reported as Ramkishun v. King Emperor, AIR 1964 Pal. 82. What was quoted by the Andhra Pradesh High Court is quoted again : "It may be stated that section 145 of the Evidence Act permits cross-examination of a witness as to his previous statement made in writing or reduced into writing and relevant to matters in question without such writing being shown to him or being proved. If the witness admits having made any such contradictions in his previous statement, then there is no necessity to show writing or prove it. But if he denies having made any such contradictions in his previous statement, then there is no necessity to show writing or prove it. But if he denies having made any such statement and it is intended to contradict him by the writing, his attention must be drawn to those parts of the statement before the writing can be proved for the purpose of contradicting him. But if he denies having made any such statement and it is intended to contradict him by the writing, his attention must be drawn to those parts of the statement before the writing can be proved for the purpose of contradicting him. This section in the Evidence Act does no where exclude statements made by witnesses in writing or reduced to writing, or relevant matters in question, during investigation, enquiry or trial of a criminal case. In other words, a plain reading of the section does not limit the cross-examination only to statements of witnesses made during the investigation of a criminal case or its enquiry or trial. In so far as the statements made by a person to a police officer in the course of investigation under Chapter XIV are concerned, section 162 prohibits their use for any purpose at any enquiry or trial for an offence under investigation except under the proviso to that section. Those statements can be used for purposes of contradiction under section 145 of the Evidence Act and where any part of such statement is so used, any part of it may be also used for purposes of any matter referred to in his cross-examination. The policy of the legislature in so far as the statements made to police officers are concerned, has been to exclude them in toto, subject of course to certain exceptions as in section 27 of the Evidence Act or under the proviso to section 162, Criminal Procedure Code." 10. I am of the opinion that the view expressed by the Patna High Court which view was followed by the Andhra Pradesh High Court is the correct view of the matter. The statement recorded by a police officer can be used in civil proceedings only with a view to contradict the witness who appear in the witness-box. The bar created under Chapter XII of Criminal Procedure Code, would operate even when any statement is recorded under the Code. The distinction sought to be pointed out that when statements are recorded under section 145 of Criminal Procedure Code, then the position would be different is again an argument which cannot be accepted. Whenever any investigation is held vis-a-vis any proceeding under the Criminal Procedure Code, the investigation is being held only under Chapter XII of Criminal Procedure Code. 11. The distinction sought to be pointed out that when statements are recorded under section 145 of Criminal Procedure Code, then the position would be different is again an argument which cannot be accepted. Whenever any investigation is held vis-a-vis any proceeding under the Criminal Procedure Code, the investigation is being held only under Chapter XII of Criminal Procedure Code. 11. In view of the above, I do not find that the view expressed by the trial Court was in any way contrary to law. This petition is found to be without merit and the same is dismissed. The petitioner would only be at liberty to contradict the witness when he put in appearance in the witness-box by confronting him or them when their statements already recorded. Disposed of accordingly.