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2001 DIGILAW 227 (PAT)

Ram Bilash Singh v. State Of Bihar

2001-03-13

INDU PRABHA SINGH

body2001
Judgment INDU PRABHA SINGH, J. 1. This application in revision under Sections 397 and 401 of the Code of Criminal Procedure, 1973 (in short the Code) is directed against the order dated 12.12.1996 passed by the 4th Additional Sessions Judge, Aurangabad in S.T. No. 29/93, whereby he dismissed the application filed on behalf of the petitioner under Section 145 of the Evidence Act wherein the petitioner had prayed that he may be permitted to draw the attention of the PW 8 (in the course of her cross-examination) to her contradictory statement made before the police. 2. From the petition it appears that PW 8, Sumitra Devi Kaur was being examined as a witness in S.T. No. 29/93 before the Court on 10.12.1996. Earlier she was examined and her statement was recorded by the Police Sub-Inspector, Nathuni Yadav attached to Apradh Anusandhan of Mahila Apradh Kosang, Bihar, Patna at the instance of Superintendent of Police (CID). It further, appears that the Superintendent of Police (CID) was authorised by the Government of Bihar by an order dated 19.7.1989 to get the case investigated by CID. Under the orders of the Superintendent of Police, Sub-Inspector, Nathuni Yadav accordingly conducted the investigation in respect of this case and has also recorded the statement of PW 8, Sumitra Devi Kaur, which was reduced into writing by him. the petitioner who happened to be the accused in the case found major contradictions in the statement of this witness as given before the Court to her earlier statement recorded by this Sub-Inspector of Police in the course of the investigation. Also some major contradictions were found in her evidence as given in the Court to her earlier written report submitted before the police. Her statement made in her fardbeyan also different with her statement made before the Sub-Inspector of Police, Nathuni Yadav. Accordingly, the learned counsel appearing on behalf of the petitioner wanted to draw the attention of PW 8 to her contradictory statements as recorded by Sub-Inspector, Nathuni Yadav under the provisions of Section 145 of the Evidence Act. However, the learned Additional Sessions Judge rejected this prayer of the petitioner on the ground that the investigation by the CID (Mahila Kosang) is not a part of investigation under Chapter XXII of the Code. However, the learned Additional Sessions Judge rejected this prayer of the petitioner on the ground that the investigation by the CID (Mahila Kosang) is not a part of investigation under Chapter XXII of the Code. Further ground of the rejection of the prayer of the petitioner was that Section 162 of the Code prohibits the use of the statement made under Section 161 of the Code for the purpose of corroboration. It has also been mentioned in this order that the CID (Mahila Kosang) was entrusted with the investigation of the case under this Chapter of the Code. The learned Court below also held that under law it is only the I.O. while acting under this Chapter of the Code that he can file the charge-sheet under Section 173 of the Code. Also the learned Court below has taken the stand that since the FIR in this case was not recorded by the CID the statement made by PW 8 before Shri Nathuni Yadav, Sub- Inspector of Police, CID) cannot be used for contradicting this witness under the provisions of Section 145 of the Evidence Act. Also the learned Additional Sessions Judge thought it fit to reject this prayer of the petitioner on the ground that Sub-Inspector of Police (CID) was not as yet examined. 3. On behalf of the petitioner it has been submitted that there is absolutely no merit in any of these grounds mentioned above as taken by the learned Additional Sessions Judge. The learned Court below has completely misdirected itself with respect to the provision of law as contained in Section 145 of the Evidence Act. The impugned order is also contrary to the law as contained in Section 173(8) of the Code and Section 3 of the Police Act. In her evidence PW 8 has admitted that the CID had also investigated this case but has denied that her statement was ever recorded by the Sub-Inspector CID. Even if it be accepted for a moment that the statement recorded by Sub-Inspector, Nathuni Yadav, is not part of the investigation of the case still the attention of PW 8 could be drawn to the statement made by her before the Sub-Inspector of Police, Nathuni Yadav. On these grounds it has been contended that the impugned order be quashed. 4. The parties have heard in detail about the questions of law raised in this petition. On these grounds it has been contended that the impugned order be quashed. 4. The parties have heard in detail about the questions of law raised in this petition. It appears that on behalf of the petitioner attention of PW 8 was sought to be drawn to her alleged earlier statement made before the Police under the provisions of Section 145 of the Evidence Act. In this view of the matter I will firstly proceed to examine the scope of Section 145 of the Evidence Act. It runs as follows: "145. Cross examination as to previous statements in ivriting.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." 5. As will appear from this section it is in two parts. The first part enables the opponent to cross-examine the witness as to previous statement made by him in writing or reduced to writing without such writing being shown to him. The second part deals with a situation where the cross-examination assumes the shape of contradiction; in other words both parts deal with cross- examination; the first part with the cross-examination other than by way of contradiction and the second part with the cross-examination by way of contradiction only. As will become clear, the second part lays down that if it is intended that the deposition of the witness may be contradicted by his previous statement made in writing or reduced into writing the attention of the witness must be called to such a writing while under the first part of Section 145 of the Evidence Act a witness may be cross-examined at length as to the previous statement made by him in writing or reduced into writing and relevant to the matter in issue. This section further provides that if it intended to contradict a witness with respect to his previous statement his attention must be drawn to those parts of it which are to be used for contradicting him. This section further provides that if it intended to contradict a witness with respect to his previous statement his attention must be drawn to those parts of it which are to be used for contradicting him. The law on this point has been clearly laid down by the Honble Supreme Court in the case of Tahsildar Singh V/s. State of U.P., AIR 1959 SC 1012 . 6. A perusal of Section 145 of the Evidence Act clearly shows that so far as this section is concerned a witness may be cross-examined as to his previous statements made by him in writing or reduced into writing and it is not necessary in order to attract the provisions of this section to show that the previous statements made by this witness was made in the course of the investigation. This section clearly shows that it is only a previous statement made by a witness in writing by him or reduced into writing that may be used for his cross-examination irrespective- of the fact whether such statement was made before the police in the course of investigation or otherwise. 7. In the present case the attention of PW 8 is sought to be drawn to her previous statements made before the Police in the course of investigation. Hence, Section 145 of the Evidence Act has to be read with Section 162 of the Code. 7. In the present case the attention of PW 8 is sought to be drawn to her previous statements made before the Police in the course of investigation. Hence, Section 145 of the Evidence Act has to be read with Section 162 of the Code. The proviso to sub-section (1) of Section 162 of the Code runs as follows : "Provided that when any witness is called tor the prosecution in such inquiry or trial whose statement has been reduced into writing ar, aforesaid, any part of his statement, if 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 Section 145 of the Indian Evidence Act, 1872 , (1 of 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." Sub-section (1) of Section 162 of the Code provides that "No statement made by any person to a police officer in the course of an investigation under this Chapter, shall, if reduced to writing, be signed by the person making it, nor shall any such statement or any record thereof, whether in a police diary or otherwise, or any part of such statement or record, be sued for any purpose, save as hereinafter provided, at any inquiry or trial in respect of any offence under investigation at the time when such statement was made." 8. A reading of those two provisions of Section 162 of the Code will clearly go to show that no part of the statement made by any person to a Police Officer in the course of investigation be used for any purpose except as provided in the proviso to Section 162 (1) of the Code. I have already noticed above that Section 145 of the Evidence Act consists of two parts. The first part enables the accused to cross-examine a witness regarding a previous statement made by him while the second part deals with a situation where the cross-exarnination assumes the shape of contradiction. I have already noticed above that Section 145 of the Evidence Act consists of two parts. The first part enables the accused to cross-examine a witness regarding a previous statement made by him while the second part deals with a situation where the cross-exarnination assumes the shape of contradiction. It also contains the safe-guard that before any earlier statement by way of contradiction of the evidence given by the witness in the Court is to be used his attention must be drawn to his earlier statement said to have been made by him. The proviso to Section 162 (1) of the Code only enables the accused to make use of such statement to contradict a witness in the manner provided by the second part of Section 145 of the Evidence Act. The cross-examining counsel shall put the part or parts of the statement which runs contrary to what has stated in the evidence. It is well settled that the right of defence under Section 145 of the Evidence Act is a valuable right so that where the defence is not allowed to cross-examine the prosecution witness with reference to the statement under Section 162 of the Code on the ground that it was a mere omission and not contradiction, the evidence of such witness not tested by the cross-examination cannot be accepted as corroborating the evidence of other prosecution witnesses. I have tried to analyse the law on the subject and now I summarise the same as follows. Section 145 of the Evidence Act per se does not require that the earlier statements made by the witness was made before the police in the course of the investigation. It may be made by a witness in writing or reduced into writing before any body and he can be contradicted with his earlier statements if he departs from the same in the course of his evidence in the Court. How- ever, the second part of Section 145 of the Evidence Act provides that before any earlier statements can be used to contradict him in the course of his evidence his attention must be drawn to the same. This section read with Section 162 of the Code also makes a similar provision as has been noticed in the proviso of subsection (1) of Section 162. This section read with Section 162 of the Code also makes a similar provision as has been noticed in the proviso of subsection (1) of Section 162. In the aforesaid manner I have tried to analyse the law on the subject, I will not proceed to examine how far the learned Court below has been able to follow the same. 9. In the impugned order the learned Court below has mentioned that the Sub-Inspector of Police, Jathuni Yadav, can not be said to be investigating the case since he belonged to Mahila Kosang and was not the regular Police Officer to be entrusted with the investigation of a case. In this connection it appears that the learned Court below has missed to notice Section 173 (8) of the Code. It is not in dispute that Nathuni Yadav the Sub-Inspector of Police had investigation this case and that he belonged to Mahila Kosang of CID. The question is whether he could have investigated this case or not. In the revision petition it has been stated that by an order dated 19.7.1989 the Superintendent of Police (CID) was authorised by Government of Bihar to get the cases arising in Mahila Apradh Anusandhan of Mahila Apradh Kosang to be investigated by the CID. In the present case, as has been contended on behalf of the petitioner Sub-Inspector of Police, Nathuni Yadav, of Mahila Kosang was authorised by the Superintendent of Police (CID) to further investigate the case. Sub-section (8) of Section 173 of the Code which has been newly added in the Code makes a provision for further investigation in a situation like this. If any such further investigation is made under the orders the Superintendent of Police (CID) who appears to have been authorised by the Government of Bihar it cannot be said that the Sub-Inspector of Police, Nathuni Yadav, had not recorded the statement of PW 8 in the course of investigation. Thus it would appear that in the present case the Sub-Inspector of Police, Nathuni Yadav, was investigating the case under the orders of the competent Officer authorised to pass such order for further investigation. Thus it would appear that in the present case the Sub-Inspector of Police, Nathuni Yadav, was investigating the case under the orders of the competent Officer authorised to pass such order for further investigation. If under this circumstance he records some statement of a witness in the course of the investigation how can it be said that any such statement was made by the witness before the Investigating Officer in the course of investigation, therefore, I do not find that the order of the learned Court below is correct on this point. 10. I will next proceed to examine the impugned order. The first ground taken by the learned Additional Sessions Judge is that the investigation by the CID (Mahila Kosang) is not a part of the investigation under Chapter XXII of the Code. As noticed above Section 173(8) df the Code clearly provides that further investigation can be ordered under its provision by a superior Police Officer and the Superintendent of Police (CID) is said to have been authorised by the Government to order further investigation. Under this circumstance it cannot be said that the investigation conducted by the CID was not a part of the investigation under Chapter XXII of the Code. As much the defence could be allowed to contradict the previous statements made by PW 8 before the Sub-Inspector of Police, Nathuni Yadav, of Apradh Anusandhan of Mahila Apradh Kosang. Even if the witness does not accept that she ever made any statement before the said Sub- Inspector of Police it was open to her to deny the same but nevertheless the prosecution could always cross-examine and suggest that her statement was recorded by the Sub-Inspector, Nathuni Yadav, in the course of the investigation which was reduced into writing even if she denied this fact. In the impugned order in paragraph 4 it has been stated that in this case of FIR was not lodged before Mahila Kosang nor the charge- sheet was submitted by the Police Officer of this Department. There is hardly any merit in this ground taken in the impugned order. The provisions of Section 173(8) of the Code clearly provide that in a suitable case further enquiry can always be ordered by a superior Police Officer and the investigation can be reopened irrespective of the fact before which Police Officer the FIR was lodged and who had submitted the charge-sheet. The provisions of Section 173(8) of the Code clearly provide that in a suitable case further enquiry can always be ordered by a superior Police Officer and the investigation can be reopened irrespective of the fact before which Police Officer the FIR was lodged and who had submitted the charge-sheet. Tnus, this observation made by the learned Court below is without any foundation; specially when PW 8 in her evidence had accepted that the CID had conducted an enquiry/investigation in the matter. Paragraph 5 of the impugned order shows that she had denied that her statement was recorded by the CID Sub-Inspector. It was open to her to deny having made any statement before the Sub-Inspector of CID. This will, however, not mean that she cannot be confronted with any such statement recorded by the Sub-Inspector of Police CID. If the law would have permitted any such thing the easiest course to be adopted by a witness was to deny having made any previous statement and that could have put an end to the matter. If this view of the Court below is accepted to be correct then Section 145 of the Evidence Act will lose its utility and impact. However, this view taken by the learned Court below is devoid of any merit. 11. Another point taken in the impugned order is that PW 8 could not be contradicted with her alleged statements recorded by the Sub-Inspector, Nathuni Yadav, inasmuch as Nathuni Yadav was not as yet examined in the Court. There is no such law that unless a person who has recorded the earlier statements has been examined before the Court the attention of a witness to contradict him cannot be drawn to any such statement. It is not clear from where the learned Court below could reject the prayer of the petitioner on the ground that since the Police Officer, who had recorded the statement of the witnesses, has not as yet been examined in the Court PW 8 could not have been confronted with her alleged contradictory statement made before the Police (sub-Inspector Nathuni Yadav). 12. From the detailed discussions made above it is clear that the impugned order has no merit at all and is liable to be set aside. 13. In the result, this revision application is allowed and the impugned order is quashed. 12. From the detailed discussions made above it is clear that the impugned order has no merit at all and is liable to be set aside. 13. In the result, this revision application is allowed and the impugned order is quashed. It will be open to the petitioner to cross-examine PW 8 with respect to any contradictory statement made by her vis-a-vis her statement recorded earlier by the Sub-Inspector of Police, Nathuni Yadav. 14. With this observation this application is allowed.