Criminal Procedure; Santhosh Kumar Vs. State [Kerala High Court, 26-10-2016]

Code of Criminal Procedure, 1973 – S.162 of the Code does not prohibit the use of the 161 statement of any witness in any other proceeding other than the inquiry or trial in respect of the offence for which the investigation was conducted. However the court should bear in mind the restrictions imposed under S.162 of the Code and S.145 of the Evidence Act because what is sought to be used from the case diary so produced, are the previous statements recorded under S.161 of the Code.

Code of Criminal Procedure, 1973 – the power under Section 311 of the Code must be invoked only in order to meet the ends of justice for strong and valid reasons and the same must be exercised with care, caution and circumspection. The courts were directed to bear in mind that fair trial entails the interest of the accused, the victim and the society and therefore the grant of fair and proper opportunities to the persons concerned must be ensured being a constitutional goal, as well as a human right.

# 161 Statement

IN THE HIGH COURT OF KERALA AT ERNAKULAM

RAJA VIJAYARAGHAVAN.V, J

Crl.M.C. No.6611 of 2016

Dated this the 26th day of October, 2016

CRL.MP.NO.2715/2016 IN SC.NO.1485/2008 OF ADDITIONAL SESSIONS COURT-VII, THIRUVANANTHAPURAM CRIME NO. 51/2007 OF PETTA POLICE STATION,THIRUVANANTHAPURAM DISTRICT

PETITIONER/ACCUSED NO.1

SANTHOSH KUMAR, THIRUVANANTHAPURAM.

BY SRI.B.RAMAN PILLAI,SENIOR ADVOCATE ADVS.SRI.R.ANIL SRI.SUJESH MENON V.B. SRI.T.ANIL KUMAR SRI.THOMAS ABRAHAM (NILACKAPPILLIL) SRI.M.VIVEK SRI.A.RAJESH SRI.B.KRISHNA KUMAR SRI.M.SUNILKUMAR

RESPONDENT/COMPLAINANT

STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM-682 031.

BY STATE ATTORNEY SRI.K.V.SOHAN

O R D E R

1. The petitioner is the 1st accused in S.C. No 1485 of 2008 on the file of the Additional Sessions Judge-VII, Thiruvanathapuram. He along with the other accused stand indicted for offences punishable under

# Sections 120 (B), 143, 147, 148, 212, 201 and Section 302 read with Section 149 of the IPC

2. Challenge in this petition is directed against the order by which the application filed under

# Section 311 of the Code of Criminal Procedure

(hereinafter referred to as “the Code” for brevity) to recall and re-examine PW75 was dismissed by the learned Sessions Judge.

3. Trial in the aforesaid case had commenced and as many as 77 witnesses were examined and the prosecution evidence was closed.

4. PW 5, Amaikanth, was cited to prove Exhibit P2 and P3 mahazars dated 11.4.2011. By these mahazars, prosecution sought to prove the recovery of the weapons allegedly used by accused Nos. 2 and 3.

5. According to the defence, PW 5 was a close friend of deceased Vishnu and he is also a local leader of a prominent political party. The recovery was stage managed according to them. To discredit the said witness, suggestive questions were put while he was in the box which was promptly denied. According to the defence, PW 5 and deceased Vishnu had been cited as CW No. 159 and 160 in the final report in Crime No 51 of 2007, relating to the case involving the murder of Aprani Krishnakumar. PW75, the investigating officer in the instant case had investigated that case as well and he had recorded his 161 statement of PW 5. The said statement, according to the defence, contained specific reference that Amaikanth had close connection with deceased Vishnu and that he was a local leader of CPI ( M) and also the CITU, the trade Union Wing of CPI ( M).

6. Later, when PW75 was examined, he admitted before Court that he had conducted the investigation in Crime No.51 of 2007 and that he had submitted the final report before Court. The said case had been tried and disposed of as S.C. No.1540 of 2009 in the year 2013 itself. He also admitted in his evidence that PW 5 was cited as a witness along with deceased Vishnu in the said case. It appears that when the said witness was questioned, the defence was not in possession of the previous statement of PW5 in S.C. No.1540 of 2009.

7. Immediately thereafter, the defence filed an application to recall PW 5, which was allowed by the Court below. This was after obtaining the copy of the final report In Crime No.51 of 2007 of the Petta Police Station by filing an application before this Court where Crl.Appeal No.1250 of 2003 challenging the conviction and sentence of one of the accused was pending.

8. PW 5 was further cross-examined and in the course of examination, the witness admitted that he was a witness in the earlier case but was not examined during the trial. He was cross-examined with reference to its previous statement in Crime No.51 of 2007 of Petta Police Station. When he denied, an attempt was made by the defence counsel to confront him with his previous statement in writing under section 145 of the Evidence Act. The said procedure was objected to by the learned Public Prosecutor. However, pointed questions with reference to his previous statement in Crime No.51 of 2007 was put to the witness which were emphatically denied. Thereafter, the petitioner filed an application for recalling PW75 to prove the certified copy of the final report in Crime No.51 of 2007 of the Petta Police Station which was tried as S.C.No.1540 of 2009 and was disposed. The attempt of the defence was to prove the fact that PW75 had recorded the statement of PW5 under section 161 of the Code and to discredit him with his previous statement. The said application was dismissed by the impugned order.

9. I have heard Sri B Raman Pillai, the learned Senior Counsel appearing for the petitioner as well as Sri K.V. Sohan the learned State Attorney.

10. The learned Senior Counsel referring to the decision of this Court in

# Surendran v. State of Kerala, 1993 (2) KLT 674

and of the Apex Court in

# State of Kerala v. Babu, (1999) 4 SCC 621

contended that the reasons given by the Court below to reject the application cannot be sustained. According to the learned Counsel Section 162 of the Code does not prohibit the use of statement of witness recorded in any other proceeding other than the enquiry or trial in respect of the offence for which the investigation was conducted. It is further submitted that the only objective of the defence was to challenge the credibility of PW 5 by bringing on record that he was lying on a material point. It is further argued that the learned Sessions Judge had permitted the recalling of PW 5 for further examination after being convinced about the nature of the contradictory statements made by him in the statement recorded under Section 161 of the Code in Crime No 51 of 2007 of the Petta Police Station. While the witness was cross examined, he was confronted with his previous statement in writing. He had gone to the extent of stating that he had not given any statement to PW 75 under section 161 of the Code. Sufficient materials relating to his connection with the deceased Vishnu and his party affiliation was brought out with reference to his previous statement while he was cross-examined. According to the counsel, the only course open to the defence is to recall the Investigating officer who had recorded his previous statement in the other crime and prove the said aspects. The learned Senior Counsel would further submit referring to the deposition of PW 75 , that the observation of the Court below that while the Investigating officer was cross examined, no question was put to him in connection with the statement given by PW 5 in Crime No 51 of 2007 of Petta Police Station is clearly incorrect. Finally it is submitted that the denial of an opportunity to the defence to recall PW 75 for proving the aforesaid aspect had occasioned in miscarriage of justice.

11. Per Contra, the learned State Attorney would take this Court through the sequence of events and would submit that the attempt is only to protract the trial proceedings. It is pointed out that when PW 5 was recalled, the defence was not in possession of the certified copy of the 161 statement of PW 5 in Crime No 51 of 2007. The witness was not confronted with his previous statement in writing and in view of the above, no purpose would be served in recalling the Investigating Officer. It is further submitted that the trial in Crime No. 51 of 2007 has already been completed and Appeal is pending before the Court. It is further submitted that the learned Additional Sessions Judge was justified in dismissing the application on the ground that the further examination of PW 75 was not essential for arriving at a just decision.

12. Have considered the rival submissions and have gone through the depositions of PW 5 and PW 75. I have also anxiously gone through the impugned order.

13. The first reason given by the Court below to disallow the application is that the defence had not produced the certified copy of the 161 statement of the witness when PW 5 was recalled and cross-examined. It is evident from the deposition of PW5, that the defence had put specific questions by inviting his attention to the previous statement in Crime No.51 of 2007 of the Petta Police Station. I am also not able to accept the finding of the Court below that no questions were put to PW 75 in connection with Crime No.51 of 2007. The deposition is replete with questions in connection with the said crime. All that the defence wanted to bring on record was that PW 5 was also a witness in the previous case and that he had given a statement touching his affiliation with a political party and also that he had acquaintance with the deceased Vishnu. The right of the cross examiner could not have been denied on the ground that the said case had no connection with the present case.

14. In

# Surendran v. State of Kerala, 1993 (2) KLT 674

the question whether 161 statement recorded by the Police in another case could be used for the purpose of cross examining one of the prosecution witness had come up for consideration. It was held as follows : –

“6. S.161 of the Code empowers a police officer, who investigates the case, to examine any person supposed to be acquainted with the facts and circumstances of the case. The police officer is also given the option to reduce into writing what the person tells him. S.162 of the Code which contains the prohibition regarding use of such statements provides that no such statement shall “be used 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”. From the sweep of S.162 of the Code legislature protected the right of a cross examiner to use the statement for contradicting the witness who made such statement. Of course, the right of the accused to use it for contradiction is unrestricted while prosecution can use it for contradiction only if the court permits. Even this can be done only when a witness is called for the prosecution and not otherwise.

7. The words “save as hereinafter provided” in S.162 of the Code have been used in parenthetical form. If we read the main body of the section without those words, it would mean that the statement made by any person to a police officer during investigation shall not be used for any purpose “at any inquiry or trial in respect of any offence under investigation at the time when such statement was made”. An attempt is made to interpret the words “be used for any purpose” as indicative that the sweep of the ban is plenary. But a close reading of the section would reveal that the ban is confined to the use of the statement only at any inquiry or trial in respect of any offence under investigation at the time when such statement was made. In other words, S.162 of the Code does not prohibit the use of such statement in any other proceeding (other than the inquiry or trial in respect of the offence for which the investigation was conducted). Thus, even in the limited application of the ban, one exception which Parliament advisedly provided is to safeguard the right of the accused to contradict a prosecution witness and right of the prosecution also in certain cases under certain conditions.

8. The right to cross examine a witness with reference to his previous statement can be traced to S.145, 146 and 155(3) of the Indian Evidence Act. S.145 says that a witness may be cross examined as to previous statements made by him in writing or reduced to writing. This is the general right of a cross examiner. The only restriction provided is that the previous statement must be relevant to the matters in question. Section also prescribes the procedure to be followed if the cross examiner wants to contradict the witness as to the previous statements. S.146 empowers a cross examiner to put any question to test the veracity of the witness. Of course, the vast scope covered by S.146 is subject to the court’s power to control such questions as provided in S.148 to 152 of the Evidence Act. Subject to such control the cross examiner is entitled to put any question to test the veracity of the testimony of the witness. S.155(3) of the Evidence Act says that any former statement of a witness which is inconsistent with his evidence can be proved for impeaching the credit of the witness. S.155(3) of the Evidence Act applies to any previous statement whether oral or in writing. But S.145 applies only to previous statement in writing. Thus, S.145, 146 and 155(3) of the Evidence Act are complementary to each other. When they are read together, a cross examiner cannot be restricted from putting questions except to the extent indicated in S.148 to 152 of the Evidence Act. This general right of the cross examiner has to be borne in mind when deciding the present question.

9. S.162 of the Code has been inserted for protecting the interest of the accused (vide

# Tahsildar Singh v. State of U.P., AIR 1959 SC 1012

Hence that which was intended to provide as a protection to the accused cannot, by interpretation, be made a handicap to the accused. S.162 is never intended to curb the right of the accused to contradict a witness with his previous statement.

10. The upshot of the above discussion is that the right of accused to cross examine the witness by contradicting him with reference to any previous statements made by that witness has not been trammelled by S.162 of the Code. Secondly, the ban contained in the section is applicable only where such statement is sought to be used at any inquiry or trial in respect of any offence under investigation at the time when such statement was made.”

15. Further, in

# State of Kerala v. Babu, (1999) 4 SCC 621

the Apex Court was confronted with the question as to whether the statement of a witness recorded under S.161 of Cr.P.C. in one particular crime could be used against that witness in any other trial enquiry or proceedings by the accused.

11. “The High Court in the impugned judgment proceeded on the basis that statement recorded by an investigating officer in any case which was under investigation being a statement made under S, 161 of the Code, the same can be used for the limited purpose provided under S.162 of the Code read with S.145 of the Evidence Act. There can be no quarrel with this approach of the High Court in regard to the use of the previous statements of a witness made in the course of another investigation being used in the course of another criminal trial, This is because, as seen from the observations of this Court in the case of Tahsildar Singh (supra) the very object of enactment of S.161 of the Code and S.145 of the Evidence Act is to create a right in the accused to make use of the previous statements of the witnesses for the purpose of contradiction and for impeaching the merit of the witness. This right has not been taken away by S.172 of the Code and, as noticed above, there is no prohibition in regard to this right of the accused either under the Code or under the Evidence Act.

XXXXXXXXX

13……………………….. If that be so and if the court comes to the conclusion that the production of such document is necessary or desirable then, in our opinion, the court is entitled to summon the case diary of another case under S.91 of the Code de hors the provisions of S.172 of the Code for the purpose of using the statements made in the said diary, for contradicting a witness. When a case diary, as stated above, is summoned under S.91(1) of the Code then the restrictions imposed under Sub-s.(1) and (3) of S.172 would not apply to the use of such case diary but we hasten to add that while using a previous statement recorded in the said diary, the court should bear in mind the restrictions imposed under S.162 of the Code and S.145 of the Evidence Act because what is sought to be used from the case diary so produced, are the previous statements recorded under S.161 of the Code.

(Emphasis supplied)

16. Having regard to the above binding precedents there cannot be any doubt that S.162 of the Code does not prohibit the use of the 161 statement of any witness in any other proceeding other than the inquiry or trial in respect of the offence for which the investigation was conducted. However the Apex Court has cautioned that the court should bear in mind the restrictions imposed under S.162 of the Code and S.145 of the Evidence Act because what is sought to be used from the case diary so produced, are the previous statements recorded under S.161 of the Code. In view of the above, I am of the view that the reasons on the basis of which the application was dismissed by the Court below cannot be sustained.

17. In so far as the powers of the trial Court under Section 311 of the Code is concerned, the Apex Court has issued several guidelines in

# AG v. Shiv Kumar Yadav and Another, (2016) 2 SCC 402

and in

# State of Hariyana v. Ram Mehar and Others, 2015 (8) SCALE 192

In Ram Mehar (supra) it was held on facts that the approach can be liberal but that does not mean that liberal approach shall be the rule and all other parameters become exception. It was further held that the court should be conscious of the position that, after all, the trial is basically for the prisoners and the court should afford an opportunity to them in the fairest manner possible. In that parity of reasoning, it would be safe to err in favour of the accused getting an opportunity rather than protecting the prosecution against possible prejudice at the cost of the accused. It was finally held that the power under Section 311 of the Code must be invoked only in order to meet the ends of justice for strong and valid reasons and the same must be exercised with care, caution and circumspection. The courts were directed to bear in mind that fair trial entails the interest of the accused, the victim and the society and therefore the grant of fair and proper opportunities to the persons concerned must be ensured being a constitutional goal, as well as a human right.

18. After having anxiously considered the relevant facts and circumstances and after considering the reasons canvassed by the petitioner for recalling the said witness, I am of the view that an opportunity is to be granted to the accused to secure the interest of justice.

The application will stand allowed. The learned Additional Sessions Judge is directed to recall PW 75 and to permit the accused to cross examine the said witness. The proceedings shall be expedited and the court below shall endeavor to complete the above proceeding within two weeks from the date of receipt of a copy of this order.

The petition is disposed of.

Comments