2006(4) ALL MR 272
IN THE HIGH COURT OF JUDICATURE AT BOMBAY(PANAJI BENCH)
R.M.S. KHANDEPARKAR, J.
Shri. Ranjit Satardekar & Anr.Vs.Shri. Joe Mathias & Anr.
Writ Petition No.447 of 2005
16th February, 2006
Petitioner Counsel: Shri. R. V. KAMAT
Respondent Counsel: Shri. Y. V. NADKARNI
Evidence Act (1872), S.145 - Criminal P.C. (1973), S.162 - Statement before police - Use in civil proceedings - Statements made before police during the course of investigation can be used in civil proceedings.
Petitioner sought to summon police to produce statements recorded under section 162, Cr.P.C. Application rejected on assumption that such statements cannot be used in civil proceedings. Apex court in Khatri's case (AIR 1981 SC 1068) has laid down law on the point of admissibility of such statements in civil proceedings and held that the same can be used in evidence in civil proceedings provided such statements are relevant under the Indian Evidence Act. Protection against use of statements made before police during investigation is unnecessary in any proceeding other than an inquiry or trial in respect of the offence under investigation and hence the bar created is a limited bar. It has no application, for example, in civil proceeding or in a proceeding under Article 32 or 226 of the Constitution and the statements made before a police in investigation can be used as evidence in such proceedings provided it is otherwise relevant under the Evidence Act. [Para 2,3]
2. The petitioners challenge the order passed by the trial Court dismissing the application which was filed by the petitioners for summoning the Inspector of Panaji Town Police to produce the statement recorded under Section 162 of the Code of Criminal Procedure of PW.1 which forms part of the records of Criminal Case No.146/03/B pending in the Court of Judicial Magistrate, First Class, Panaji. The impugned Order is dated 27.10.05 and has been passed in Special Civil Suit No. 102/04/B.
3. Placing reliance in the decision in the matter of Malakala Surya Rao and ors. Vs. Gundapuneedi Janakamma, reported in AIR 1964 AP 198, the learned Advocate appearing for the petitioners submitted that the trial Court clearly erred in rejecting the application on assumption that the statement recorded under Section 162 of Cr.P.C. cannot be used in civil proceedings. The learned Advocate appearing for the respondents, on the other hand, drawing attention to the ruling of the Apex Court in the case of Khatri and ors etc. Vs. State of Bihar and others, reported in AIR 1981 SC 1068 submitted that the Apex Court therein has clearly held that such statements can be used in evidence in civil proceedings provided such statements are relevant under the Indian Evidence Act. He, however, further submitted that in view of the decision of the Apex Court in Khatri and ors etc. (supra) the law on the point of admissibility of the statement recorded under Section 162 Cr.P.C. in civil proceedings is well settled and, therefore, the impugned order cannot be sustained and is liable to be set aside and the Court may, by consent, set aside the same with directions to expedite the disposal of the proceedings as there is already an order of this Court to expedite and dispose of the same within the specified period. Considering the law laid down by the Apex Court in Khatri's case, it is apparent that though there is protection granted in relation to the statement recorded under Section 162, Cr.P.C., as regards the use thereof in civil proceedings, the Apex Court has held that:
"Protection against the use of statement made before the police during investigation is, therefore, granted to the accused by providing that such statement shall not be allowed to be used except for the limited purpose set out in the proviso to the section, at any inquiry or trial in respect of the offence which was under investigation at the time when such statement was made. But, this protection is unnecessary in any proceeding other than an inquiry or trial in respect of the offence under investigation and hence the bar created by the section is a limited bar. It has no application, for example in a civil proceeding or in a proceeding under Article 32 or 226 of the Constitution, and a statement made before a police officer in the course of investigation can be used as evidence in such proceeding, provided it is otherwise relevant under the Indian Evidence Act."
It has also been held by the Apex Court therein that:
"It is obvious, therefore, that even a statement made before a police officer during investigation can be produced and used in evidence in a writ petition under Article 32 provided it is relevant under the Indian Evidence Act and Section 162 cannot be used as a bar against its production or use."
4. The Apex Court in Khatri's case has also referred to the decision of the Andhra Pradesh High Court in Malakala Surya Rao and ors. (supra) with approval. The learned Single Judge of the Andhra Pradesh High Court, had held that :
"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 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."
It was further held that:
"This section in the Evidence Act does nowhere exclude statement made by witness in writing or reduced to writing, or relevant matters in question, during investigation, enquiry or trial or a criminal case. In other words, a plain reading of the section does not limit the cross-examination only to statement of witnesses made during the investigation of a criminal case or its inquiry 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 inquiry 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 also be 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."
It was also further held that:
"The words used in Section 145 are 'or reduced into writing' need not necessarily mean that they are reduced into writing by someone authorised by law to reduce them into writing, such as a Magistrate or a Judge etc."
After considering various other Judgments of different High Courts, it was held that the statements recorded by a police officer under Section 162, could be used in a civil proceeding in view of Section 145 of the Evidence Act.
5. Since the law on the point being well settled, certainly, the impugned order cannot be sustained and is liable to be set aside. While setting aside the impugned order by consent, it is necessary to direct the trial Court to expedite the hearing of the special civil suit. The trial Court is, therefore, directed to dispose of the special civil suit as expeditiously as possible and in any case, on or before 30th June, 2006. Consequently, the application filed by the petitioners on 11.10.05 in Special Civil Suit No.102/05/B is, hereby, allowed. Needless to say that the relevancy of the document which is sought to be used for cross-examination will have to be dealt with by the Trial Court in the course of recording of evidence bearing in mind the provisions of the Indian Evidence Act as well as Order 13 of C.P.C. Rule is made absolute accordingly with no order as to costs.