Criminal Writ Petition No.763 of 2017

6th October, 2017.

Petitioner Counsel: Shri. H.V. THAKUR
Respondent Counsel: Mrs. S.S. JACHAK

Cases Cited:
Emperor Vs. Pranshankar Shambhuram Raval and another, AIR 1950 Bom. 14 [Para 5]
Ushmaben Dineshbhai Gohel Vs. State of Gujarat and another, Cri. Misc. Appl. No.15654/2012, Dt.4.9.2015 (Guj.) [Para 6]
Brahma Naik Vs. Ram Kumar Agarwalla and others, 1974 CRI.L.J. 567 (V 80 C 191) [Para 7]
Jwala Mohan and others Vs. The State, AIR 1963 Allahabad 161 [Para 8]
State of Rajasthan Vs. Kartar Singh, AIR 1970 SC 1305 [Para 9]
Ramdas Srinivas Nayak Vs. Abdul Rehman Antulay and another, 1993 (1) Bom. C.R. 185 [Para 10]
Hazari Lal Vs. State (Delhi Administration), (1980) 2 SCC 390 [Para 11]
Ripen Kumar Vs. Department of Customs, 2001 Cri.L.J. 1288 [Para 12]

JUDGMENT

Judgment :- Rule, made returnable forthwith. Heard finally by consent of the learned counsel appearing for the parties.

2. The learned Additional Sessions Judge, Chandrapur in Special (POCSO) Case No. 29 of 2014 has passed an order on 09.03.2017 (Exhibit No.19) rejecting the application filed by the accused for grant of permission to refer the testimonies of witnesses recorded before the Magistrate prior to committal of the case to the Special Court, for the purposes of contradiction. The Court has held that the witnesses can be contradicted only when their statement is recorded by Police under Section 161 of Criminal Procedure and there is no provision for using the statement previously recorded by committal Court, to contradict the witnesses. It holds that the accused has opted for de novo trial and the testimonies of the witnesses are washed out and therefore such course is not permissible.

3. The accused was prosecuted for the offences punishable under Sections 354 and 506 of the Indian Penal Code. The trial was over and at the time of delivering the judgment, the learned Magistrate found that the charges under Sections 7 and 8 of Protection of Children from Sexual Offences Act are required to be added. The accused was asked for the option, which he exercised for de novo trial by filing Pursis at Exhibit 14-A on 21/1/2017. The trial was committed to the Sessions Court. During the course of trial before the Special Court, the accused sought permission to refer the testimonies of the witnesses recorded before the Committal Court for the purposes of contradiction.

4. The question involved is, whether it is permissible under Section 145 of the Indian Evidence Act to use such statements recorded by the Magistrate, to contradict the witnesses before the Sessions Court, upon exercise of the option by the accused for de novo trial.

5. In the decision of this Court in the case of Emperor v/s Pranshankar Shambhuram Raval and another reported in AIR 1950 Bombay 14, it is held in para No.3 as under:-

3. As therefore the whole evidence of a witness who is resummoned is to be recorded again, his previous deposition before another Magistrate cannot be treated as substantive evidence in the case, although it may be used for contradicting any fresh evidence given by him under S.145, Evidence Act. The object with which the right has been given to the accused to demand that the witnesses previously examined should be recalled and reheard is that fee may, if he considers that he would otherwise be prejudiced, ask the Magistrate to form his own opinion about the credibility of those witnesses, whom he regards as material, and to base his decision on their evidence as recorded before him. As observed by Burn J. in Mudda Veerappa, v. Emperor, AIR (22) 1935 Mad 318 at p.319: (36 Cr.LJ1265):

6. Relying upon the aforesaid decision, the learned Single Judge of Gujarat High Court in the case of Ushmaben Dineshbhai Gohel v/s State of Gujarat and another, delivered on 04/09/2015 in Criminal Misc. Application No.15654 of 2012, considered the question as to whether the deposition of the complainant recorded by the predecessor Court becomes inadmissible or non-existent on account of de novo trial. In paragraph Nos. 31 and 32 of the said decision, it is held as under:-

"31. In my view, what is prohibited under Section 326 (3) is consideration of the evidence recorded by the predecessor Court. To put in other words, when a case is tried as a summary case, a Magistrate, who succeed the Magistrate who had recorded the part or whole of the evidence, cannot act on the evidence so recorded by his predecessor. This, however, should not be construed as whenever the successor Court orders a de novo trial, the statement of the complaint and his witnesses recorded by the predecessor Court cannot be used for contradicting the complainant and his witnesses. Their previous statements do not become inadmissible or non-existent on account of the de novo trial.

32. I am of the view that the statements of the complainant or the witnesses recorded by the predecessor Court are former statements of the complainant and the witnesses who are subsequently examined after the de novo trial, though in the same proceedings. This statement can be used for contradiction under Section 145 of the Evidence Act. There is no logic in the contention that because of a do novo trial, such statement must be treated as if non-existent or inadmissible."

7. The decision of the Orissa High Court in the case of Brahma Naik V/s Ram Kumar Agarwalla and others reported in 1974 CRI.L.J. 567 (V 80 C 191), wherein it is held in paragraph no.3 as under:-

"3. The first contention that the evidence recorded by the predecessor Assistant Sessions Judge is wholly inadmissible and is non est and cannot be utilised even to contradict the statements of the same witnesses before the successor Judge in the same proceeding is a fantastic contention which has no legal sanction. Under Section 145 of the Evidence Act a witness may be cross-examined as to previous statements made by him in writing or reduced to 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.

The statements of the prosecution witnesses recorded by the predecessor Assistant Sessions Judge are former statements of the witnesses who were subsequently examined after the de novo trial, though in the same proceeding. These statements can be used for contradiction under Section 145 of the Evidence Act. There is no logic in the contention that because there was a de novo trial those statements must be treated as if non-existent or inadmissible".

8. In the decision of the Full Bench of Allahabad High Court in the case of Jwala Mohan and others v/s The State reported in AIR 1963 Allahabad 161, it has been held as under:-

"The third exception is that the evidence given before the Magistrate by a witness can be used to contradict him when he gives evidence at the sessions trial, vide section 145, Evidence Act. In the first two exceptions the evidence given before the Magistrate is treated as direct evidence of the facts stated therein and can be used for proving the offence; the use of the evidence in the third exception is of a negative character and it can be used only to demolish the effect of the evidence given at sessions trial, not as direct evidence of the facts stated therein".

9. In the decision of the Apex Court in the case of State of Rajasthan v/s Kartar Singh reported in AIR 1970 SC 1305, it is held in paragraph nos. 9 and 10 as under :-

"9. The objection taken to the admissibility of the statement was that every single passage which differed from her testimony in the Court of Session was not put to her with a view to affording her an opportunity of explaining why she had made a contrary statement. No doubt, if there were some passages here and there which differed from her later version, that procedure would have been necessary. Here the witness admitted that her statement was truly recorded in the Committal Court. She only denied that it was a true statement because she said that she was made to depose that way by the police. It would have been useless to point out the discrepancies between the two statements because her explanation would have been the same. In these circumstances, the requirements of Section 145 of the Indian Evidence Act were fully complied with and the earlier statement would be read as evidence in the Sessions Trial.

10. In our judgment, there was sufficient compliance with Section 145 of the Indian Evidence Act in his case also. It would have been pointless to draw his attention to each sentence and ask his explanation because the explanation would have been the same it was false and given under pressure of police".

10. Shri Thakur, the learned counsel has further relied upon the Division Bench judgment of this Court in the case of Ramdas Srinivas Nayak vrs. Abdul Rehman Antulay and another reported in 1993 (1) Bom. C.R. 185, to urge that what is relevant under Section 145 of Evidence Act is the previous statement made by the witness, whether it be before the Court having jurisdiction or without jurisdiction. The relevant portion of para 21 of the said decision is reproduced below.

"21. It was further submitted that in any case in view of the decision of the Apex Court, the High Court Judge or Judges who recorded the evidence of the various witnesses had no jurisdiction and as such the said deposition cannot be utilised as previous statement for the purpose of contradicting the witnesses under the provisions of section 145 of the Evidence Act. In that behalf it is necessary to notice that so far as section 145 of the Indian Evidence Act is concerned, what is relevant is the previous statement and the section no where puts any other limitation with reference to such previous statement, excepting that it has to be in writing or reduced into writing. Difference between the provisions of section 145 and section 157 of the Indian Evidence Act, is very relevant on this aspect. Under section 157 in order to corroborate the testimony of the witness, any former statement made by such witness relating to the same fact at or about the time when the fact took place, or before any authority legally competent to investigate the fact, may be proved, whereas under section 145 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. In our opinion it is not necessary that the previous statements have to be before the person having jurisdiction in the matter or before the person legally competent to record the statements. The fact that the witness has made previous statement only is relevant in that behalf. Reliance placed on behalf of the complainant on the decision of the Patna High Court reported in A.I.R. 1946 Patna 82, (Ramkrishun Sao and others v. Experor), is justified. The Division Bench of the Patna High Court in the aforesaid case has held as under:

"Previous statement of a witness reduced to writing can be used in cross-examination under section 145 but the section does not lay down that the writing which is to be used for the purposes of cross-examination must be by a person having jurisdiction to reduce that statement to writing.

Therefore, even though the previous statements of a witness recorded by a Special Magistrate under the Special Criminal Courts Ordinance 2(2) of 1942, must on the declaration of that Ordinances as illegal be taken to have been recorded by a Magistrate who had no jurisdiction to record the same, the statements can still be used under section 145 for the purpose of cross-examining the witness"

11. The learned A.P.P. Mrs. Jachak has urged that under Section 145 of the Evidence Act it is only the statement recorded under Section 161 or in police diary under Section 172 before the investigating officer and the statement recorded under Section 164 before the Magistrate, which can be used for contradicting the witnesses and the previous statement recorded by way of evidence before the Magistrate cannot be used in the case of de novo trial. It is the contention of Mrs. Jachak that at the most the previous statement recorded in the examination-in-chief can be put to a witness and the statement in cross examination cannot be used to contradict the witness. The learned APP Mrs. Jachak also relied upon the decision of the Apex Court in the case of Hazari Lal vrs. State (Delhi Administration) reported in (1980) 2 SCC 390. (emphasis supplied) Para 8 of the decision relied upon is reproduced below.

"8. The learned counsel was right in his submission about the free use made by the Courts below of statements of witnesses recorded during the course of investigation. Section 162 of the Code of Criminal Procedure imposes a bar on the use of any statement made by any person to a Police Officer in the course of investigation at any enquiry or trial in respect of any offence under investigation at the time when such statement was made, except for the purpose of contradicting the witness in the manner provided by s.145 of the Indian Evidence Act. Where any part of such statement is so used any part thereof may also be used in the re-examination of the witness for the limited purpose of explaining any matter referred to in his cross-examination. The only other exceptions to this embargo on the use of statements made in the course of an investigation, relates to the statements falling within the provisions of s. 32(1) of the Indian Evidence Act or permitted to be proved under s. 27 of the Indian Evidence Act. S.145 of the Evidence Act provides that a witness may be cross-examined as to previous statements made by him in writing and reduced into writing and relevant to matters in question, without such writing being shown to him or being proved but, that 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. The Courts below were clearly wrong in using as substantive evidence statements made by witnesses in the course of investigation. Shri H. S. Marwah, learned counsel for the Delhi Administration amazed us by advancing the argument that the earlier statements with which witnesses were confronted for the purpose of contradiction could be taken into consideration by the Court in view of the definition of "proved" in section 3 of the Evidence Act which is,

A fact is said to be proved when, after considering the matters before it, the Court either believes it to exist or considers its existence so probable that a prudent man, ought, in the circumstances of the particular case to act upon the supposition that it exists.

We need say no more on the submission of Shri Marwah except that the definition of proved does not enable a Court to take into consideration matters, including statements, whose use is statutorily barred.

The learned counsel has relied upon the portion which is emphasized to urge that the only other exception to this embargo on the use of statements made in the course of an investigation relates to the statements falling within the provisions of Section 32(1) of the Indian Evidence Act or permitted to be proved under Section 27 of the Evidence Act.

12. Shri Thakur, the learned counsel appearing for the petitioner has relied upon the decision of the then Division Bench of the Delhi High Court in the case of Ripen Kumar vrs. Department of Customs, reported in 2001 Cri.L.J. 1288, wherein it is held in paragraph 9 as under;

"9. By the impugned order the learned Additional Sessions Judge surprisingly came to the conclusion that even the said incomplete statement of PW-1 should have been read in evidence. It ought to have been looked into as a supporting evidence to the statement recorded under Section 108 of the Customs Act. This observation of the learned ASJ is contrary to the well understood expression of the word "evidence". The words "all statements" include the examination-in-chief as well as the cross-examination and subject to the permission re-examination also. It is only when the witness is permitted to be cross-examined that the credibility of the witness can be looked into. The emphasis is on the fact that the witness had been cross-examined fully. Only thereafter the evidence given by a witness in judicial proceeding is relevant for the purpose of proving a particular fact. But if the witness has not been permitted to be cross-examined then such a statement cannot be termed as an evidence of the witness nor can it be read in evidence. It must be remembered that where part cross-examination took place such a statement cannot be called evidence in the eyes of law. The procedure as laid down under the Evidence Act is clear and unambiguous. Under the Evidence Act, evidence means the examination-in-chief and cross-examination. That statement alone will form evidence. In the present case petitioner had been deprived to cross-examine PW-1 thereby dislodge his testimony. Hence incomplete statement of PW-1 in the absence of cross-examination could not be treated as evidence nor the same could be relied upon. Therefore the observation of learned ASJ that incomplete statement could have been the basis of deciding the question of charge is contrary to law. Part statement of PW-1 did not attain the status of evidence, nor on the basis of the same it could be said that statement of the accused recorded under Section 108 of the Customs Act stood proved"

13. The position of law from the aforesaid decision appears to be very clear on the provision of Section 145 of the Evidence Act, which is reproduced below;

145. Cross-examination as to previous Statements in writing

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 its which are to be used for the purpose of contradicting him.

The provision states that the witness may be cross examined as to "previous statement" made by him "in writing" or "reduced into writing" and relevant to the 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 its which are to be used for the purpose of contradicting him.

14. The language employed under Section 145 is very wide and irrespective of the fact whether the statement is made under Section 161, 164 or 172 of Criminal Procedure Code, it can be used for the purpose of contradicting witness. The statement made before the Magistrate in a trial, can also be used under Section 145 of the Evidence Act for the purposes of contradiction even in case of a de-novo trial. The previous statement whether made in the examination-in-chief or in cross-examination before the Judicial Magistrate during the course of trial, constitutes an evidence which can be used for the purposes of contradicting such witness in the event of de novo trial. The learned Additional Sessions Judge, therefore, committed an error in rejecting the application of the petitioner for using the previous statements of the witnesses for the purposes of contradiction. The impugned order, therefore, cannot be sustained.

15. In the result, writ petition is allowed. The order dated 09.03.2017 passed below Exh.19 in Special (POCSO) Case No. 29 of 2014 is hereby quashed and set aside. The application at Exh. 19 filed by the petitioner for grant of permission to refer the testimony of the witnesses recorded before the trial Court is allowed.

Rule is made absolute in these terms. No order as to costs.

Petition allowed.