Bhagat Ram vs State of Punjab and ors.

S.S. Kang, J.

Bhagat Ram, petitioner, is being tried along with others under Sections 324, 323 read with Section 34, Indian Penal Code, in the Court of Shri N.S. Saini, Judicial Magistrate Ist Class, Jullundur.

The police had during investigation recorded the statement of Trilochan Singh under Section 161, Code of Criminal Procedure (for short `the Code'') to explain the delay in lodging the first information report. He was cited as a witness by the prosecution. However, during the trial he was given up as won over by the prosecution. He was called as a defence witness by the accused. He was examined as DW 4. During crossexamination, the learned State Counsel wanted to confront Trilochan Singh with his statement recorded by the police under Section 161 of the Code. The learned defence counsel objected the same on the ground that Section 162 of the Code is a complete bar to the prosecution to contradict a defence witness with his statement under Section 161 of the Code. The learned trial Magistrate, however overruled objection vide his order dated October 1, 1981. Aggrieved with that order, the petitioner has filed the present petitioner under Section 482 of the Code for quashing this order.

In order to appreciate the arguments raised by the learned counsel for the parties, it will be useful to reproduce Section 162 of the Code. It reads as under :

"162. Statements to police not to be signed : Use of statements of evidence. (1) No statement made by any person to a police officer in the course of an investigation under this Chapter, shall, if reduced to writing, be signed by the person making it, nor shall any such statement or any record thereof, whether in a police diary or otherwise, or any part of such statement or record, 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 :

Provided that when any witness is called for the prosecution in such inquiry or trial whose statement has been reduced into writing as aforesaid, any part of his statement, if duly proved, may be used by the accused, and with the permission of the Court, by the prosecution, to contradict such witness in the manner provided by Section 145 of the Indian Evidence Act, 1872 (1 of 1972); and when any part of such statement is so used, any part thereof may also be used in the reexamination of such witness, but for the purpose only of explaining any matter referred to in his crossexamination.

(2) Nothing in this Section shall be deemed to apply to any statement falling within the provisions of clause (1) of Section 32 of Indian Evidence Act, 1872 (1 of 1872), or to effect the provisions of Section 27 of the Act.

Explanation : An omission to state a fact or circumstances in the statement referred to in subsection (1) may amount to contradiction if the same appears to be significant and otherwise relevant having regard to the context in which such omission occurs and whether any omission amounts to a contradiction in the particular context shall be a question of fact."

It is clear from the language employed in the section above that the statement made by a person to a police officer in the course of investigation cannot be used for any purpose, save as provided in the Proviso to this section. The Proviso only entitles the prosecution to contradict a witness called by it with his previous statement under Section 161 of the Code with the permission of the Court. Since a defence witness is not called for the prosecution, the proviso is not attracted and the bar of subsection (1) of Section 162 of the Code operates and this statement cannot be used by the prosecution for any purpose. The ratio on the decision in Raghunandan v. State of U.P., A.I.R. 1974 Supreme Court 463, rather supports this view. In that case one Jai Lal was examined as a court witness by the trial Court. He denied having made any statement to the police. Although the record showed that his statement had been recorded by the police during investigation, yet the trial Court did not permit the contents of that statement to be used to contradict the version given by him while appearing as a court witness. A grievance was made before the Supreme Court by the accusedappellants that the statement of Jai Lal could not be relied upon, as was done by the High Court, because the defence was not allowed to contradict him with his statement under Section 161 of the Code.

It was also contended that in exercise of the powers conferred on it by Section 165 of the Indian Evidence Act, the trial Court could use a statement under Section 161 of the Code to contradict Jai Lal because the bar of Section 162 of the Code applied only to the parties and not the Court. Dealing with this submission their Lordships held :

"We are inclined to accept the argument of the appellant that the language of Section 162 Criminal Procedure Code, though wide, is not explicit or specific enough to extend the prohibition to the use of the wide and special powers to the Court to question a witness, expressly and explicitly given by Section 165 of the Indian Evidence Act in order to secure the ends of justice. We think that a narrow and restrictive construction put upon the prohibition in Section 162 Criminal Procedure Code, so as to confine the ambit of it to the use of statements by witnesses by parties only to a proceeding before the Court, would reconcile or harmonize the two provisions considered by us and also serve the ends of justice. Therefore, we hold that Section 162 Criminal Procedure Code does not impair the special powers of the Court under Section 165 Indian Evidence Act. Consequently, we think that the Trial Court could and should have itself made use of the statement made by Jai Lal during the course of the Investigation. If that had been done, it is possible that it may have affected appraisal of evidence of other prosecution witnesses."

Even the observations from this judgment reproduced by the learned trial Magistrate in hi sorder support this view. Their Lordships have mainly inerpreted Section 165 of the Indian Evidence Act and held that Section 162 of the Code does not curtail the powers of the Court to put any question to any witness.

The highest Court has placed the matter beyond the pale of controversy by their decision on this point in Mrs. Shakila Khader etc. v. Nausher Gama and another, A.I.R. 1975 Supreme Court 1324, when it was observed.

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"As regards the evidence of DW1, it was wrong to have allowed him to be crossexamined by the prosecution with reference to the statement which he had given to the police. Under Section 162 Cr. PC only witnesses on behalf of the prosecution could be contradicted by reference to their statements made to the Police, and not court witnesses or defence witnesses. Even so in the circumstances of this case his evidence, which is more or less similar to the evidence of PWs 5 to 7, cannot be accepted.

These authorities clearly laid down that the prosecution cannot be allowed to use a previous statement of a witness recorded under Section 161 of the Code to contradict a witness called by the defence, because subsection (1) of Section 162 of the Code prohibits this course.

Consequently, this petition is allowed and the order dated October 1, 1981, of the learned Judicial Magistrate Ist Class, Jullundur, being illegal, is hereby set aside.