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Orissa High Court · body

2009 DIGILAW 919 (ORI)

Bhagabat Sahoo v. State of Orissa`

2009-11-30

S.K.MISHRA

body2009
JUDGMENT S.K. MISHRA, J. — Heard learned counsel for the petition¬ers as well as learned Addl. Government Advocate for the opposite parties. Keeping in view the limited nature of the question involved, the matter is disposed of at the stage of admission. 2. The petitioners assail the order dated 25.06.2008 passed by the learned J.M.F.C., Bhadrak in 1.C.C. No. 66 of 2006 rejecting the petition dated 29.2.2008 of the petitioners for confronting the statement of P.Ws. 1,4,5,6 and 7 recorded under Section 161 Cr.P.C. in G.R. Case No. 1699 of 2005, as contradic¬tion. 3. The actual background of the present case is that on 23.11.2005 the complainant lodged an FIR at Bhandaripokhari Police Station regarding the occurrence. On 30.12.2005 the police submitted a final report stating that the case is one mistake of fact. On 23.2.2006 the complainant filed the complain case before the learned S.D.J.M., Bhadrak which is registered as I.C.C. Case No. 66 of 2006. 4. The learned S.D.J.M., Bhadrak, after due enquiry under Section 202 Cr.P.C., took cognizance of offence under Sections 341/323/294/506/34 IPC and issued process against the accused persons. On 10.3.2006, G.R. Case No. 1699 of 2005 was tagged to the present complain case filed by the complainant. Thereafter, six witnesses were examined by the complainant. On 22.9.2007 the accused persons were allowed to further cross-examine the P.W. 1. On 29.10.2007 the accused persons were allowed to further cross-examine P.Ws.4, 5 and 6 with a direction to submit the appropriate costs. During the further cross-examination of P.W.4, the learned counsel for the accused persons suggested to P.W.4 that he had not stated the fact to the I.O. in G.R. Case No. 1699 of 2005 which he had stated before the court. In other words, the defence attempted to contradict the witness regarding some material omission in her statement recorded under Section 161 of the Code of Criminal Procedure, hereinafter referred as ‘the Code’, for brevity. The learned counsel for the complainant raised objection and submit¬ted that arbitrarily the police being influenced by the accused persons, submitted final report for which the complain case has been filed and those witnesses have already been examined under Section 202 Cr.P.C. by the learned S.D.J.M., Bhadrak. Learned counsel for the complainant raised objection that the statement recorded under Section 161 Cr.P.C. by the I.O. cannot be allowed to be used by the defence counsel for contradicting any witness¬es. Learned counsel for the complainant raised objection that the statement recorded under Section 161 Cr.P.C. by the I.O. cannot be allowed to be used by the defence counsel for contradicting any witness¬es. The learned Magistrate accepted the contention of the learned counsel appearing for the complainant and did not allow the de¬fence to put any question or suggestion to the prosecution wit¬nesses with reference to their statement recorded under Section 161 Cr.P.C. Such order has been assailed in this revision appli¬cation. 5. Learned counsel for the petitioners drew attention of the Court to the provision of under Section 145 of the Indian Evidence Act, 1862 and submitted that the statement recorded under Section 161 of the Code, during investigation is a previous statement even though the present case is a complain case. 6. Learned Additional Standing Counsel for the State and the learned counsel appearing for Opp. Party No.2, on the other hand, supported the finding of the learned J.M.F.C., Bhadrak and prayed to dismiss this revision application. 7. Under Section 145 of the Indian Evidence Act, it is provided that 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 contracting him. Section 162 of the Code provides that the statement recorded under Section 161 of the Code cannot be used in any enquiry or trial except for the purpose of contra¬dicting such witness in such trials. Section 162 of Code does not provide that the said statement cannot be used in any proceeding other than the one for which that particular investigation was conducted. The only limitation is that such statement may be used to contradict a witness for the prosecution. 8. Admittedly, in this case an FIR was lodged by the complainant and the case was investigated by the Police Officer of Bhandaripokhari Police Station. In course of such investiga¬tion he recorded the statement of the witnesses under Section 161 of the Code. So, such recording of statement of the witnesses is definitely a previous statement reduced in to writing. 8. Admittedly, in this case an FIR was lodged by the complainant and the case was investigated by the Police Officer of Bhandaripokhari Police Station. In course of such investiga¬tion he recorded the statement of the witnesses under Section 161 of the Code. So, such recording of statement of the witnesses is definitely a previous statement reduced in to writing. Such view is supported by the decision of the Karnatak High Court in the case of Madhav Rao v. Mohammad Abdul Mateen, 1978 Criminal Law Journal 295, wherein it has been held that a prosecution witness is a witness examined by the prosecution. It is immateri¬al whether the complainant examines witnesses on his behalf in prosecuting the complaint or a prosecution is launched by the State through the investigating agency, the witnesses so examined in support of the prosecution case remain prosecution witnesses and as such, if they have made any previous statements to the investigating officers in regard to the very incident in ques¬tion, those statements can be used to contradict the witnesses if such an occasion arises. It may be further noted that both Sec¬tions 145 of the Indian Evidence Act and Section 162 of the code, do not differentiate between a complain case and a case launched by an investigating agency. 9. The learned J.M.F.C., Bhadrak, while considering the motion made by the defence, for confronting statements recorded under Section 161 of the Code, was influenced by the allegation that the police officer did not investigate the case properly and did not record the statement of the witnesses under Section 161 of the Code. In other words, the complainant alleges that the investigating officer only made a pretence of investigation. 10. Be that as it may, the right of the accused person to cross-examine the witnesses when reference to such statement under Section 161 of the code cannot be taken away. On the other hand, at the final disposal of the case if the learned Magistrate comes to the conclusion that the investigating officer has actu¬ally not examined the witnesses then it is open for him to appre¬ciate the evidence keeping in view the said allegations. 11. Another point that arises in this case is how to prove such contradiction if any. The learned counsel for the petitioner relies on the decision reported in 1982 Criminal Law Journal, 1818 (Harnam Singh & Ors. 11. Another point that arises in this case is how to prove such contradiction if any. The learned counsel for the petitioner relies on the decision reported in 1982 Criminal Law Journal, 1818 (Harnam Singh & Ors. V. State) wherein it has been laid down that the non-production of such a witness like the investigating officer, by the prosecution, the defence be will not precluded from calling him as a witness for it. Therefore, it is hereby made clear that in case any contradiction arises and if the de¬fence files an applications to summon the investigating officer concerned than the court shall consider the same. 12. Keeping in view the aforesaid consideration, the revi¬sion application is allowed. The petitioners are directed to make a fresh application before the learned J.M.F.C., Bhadrak within three weeks for recall of P.W.1 to P.W.6 indicating in the appli¬cation the exact question they want to put to those witnesses. The witnesses shall attend the Court at the cost of the petition¬ers and for that purpose the cost shall be assessed by the trial court. Revision allowed.