Can 161 Statement Used for the Purpose of Cross Examination

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 : –

  • Section 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.
  • Section 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.

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.

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.

  • Section 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.
  • Section 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.
  • Section 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.

Section 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.

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.

See Also : Santhosh Kumar Vs. State [Kerala High Court, 26-10-2016]

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