Kalu vs State of M. P.

K.L. Shrivastava, J.

This is an application u/s 482 of the Criminal Procedure Code 1973 (for short ''the Code'') challenging the orders passed by the second Additional Sessions Judge Mandleshwar whereby he has refused permission to contradict the witnesses with their answers to questions u/s 313 of the Code.

Circumstances giving rise to this petition are these. The applicant Kalu together with one Narayan when in the night of 29-12-1981 was guarding the fields sown with cotton and juwar crops they found that some miscreants including deceased Guman, Jamsingh (P.W.I) and Radheshyam (P.W.2) were committing theft of cotton. On alarm being raised the miscreants started running away and pelted stones at the applicant and Narayan with slings.

The occurrence was reported to the police station and the miscreants were prosecuted u/s 395 of the Indian Penal Code. They have ultimately been acquitted.

As one of the miscreants was found dead, it was observed by the Sessions Judge that those responsible for his death deserve to be prosecuted. Consequently Kalu and Narayan have been prosecuted u/s 302/34 Indian Penal Code. It is alleged that the death of the victim was as a result of two lathi blows on his neck.

The miscreants Jamsingh and Radheshyam who had earlier been prosecuted have been cited as prosecution witnesses. In his statement u/s 313 of the Code, Jamsingh had denied any participation in the occurrence. When he figured as an eye witness the learned counsel for the petitioner wanted to contradict him with his previous statement u/s 313 of the Code. The learned Addl. Sessions Judge refused permission to do so on the ground that the explanation u/s 313 of the Code is not the statement by a witness. It is not on oath and could be used only for the limited purpose as provided u/s 313(4)(i) of the Code. He did. the same in respect of Radheshyam (P.W.121

The point for consideration is whether the answers given u/s 313 of the Code can be permitted to be used for contradiction as contemplated u/s 145 of the Evidence Act.

Courts exist for doing justice with truth as its foundation. A witness''s primary allegiance is to the truth and not to the party calling upon him and cross-examination is undoubtedly the greatest legal engine ever invented for discovery of truth. The primary purpose of cross-examination is securing admissions to prove the case set up by the party concerned and the secondary object is to discredit opponent''s witnesses or their stories.

Section 146 of the Evidence Act points out what questions are lawful in cross-examination. According to it a variety of questions are within the permissible precincts of that provision. The amplitude of the power of cross-examination is with the view that truth may be extracted and justice ensured.

Section 155(3) of the Evidence Act lays down a general rule that credit of witnesses may be impeached by proof of former inconsistent statement, oral or written. The provision of this section is certainly controlled by section 162 of the Code and section 145 of the Evidence Act.

At this stage it would be advantageous to reproduce the relevant provision of section 145 of the Evidence Act which falls for interpretation. It reads thus : -

Cross-examination as to previous statement in writing.

A witness may be cross-examined as to previous statement 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.

The witness may be cross-examined as to his previous statement in writing for two purposes; it may be to test his memory and here the very object would be defeated if the writing were to be placed in his hands before the question was asked, or it may be to dontradict him and here it would be obviously unfair not to give him every opportunity of seeing how the matter really stands.

It may be noted that the provision in section 145 of the Evidence Act is in two parts to suit the relevat situations. The second part is attracted only when contradiction is intended and not otherwise.

The decisions in Tahsildar Singh and Another Vs. The State of Uttar Pradesh, . Briwanath Prasad''s case. AIR 1974 SC 113 and Laxman and Others Vs. The State of Maharashtra, . make illuninating reading on section 145 of the Evidence Act.

It is clear from a plain perusal of the provision embodied in section 145 of the Evidence Act that once a person comes to occupy the position of a witness and it is found that he made two contradictory statements either in different proceedings or in two different stages of a proceeding, the provision comes into play as pointed out in the decision in Mohanlal Gangaram Gehani Vs. State of Maharashtra, . It may be noted that it is not the requirement of the provision that the witness''s previous statement reduced into writing must always be made by him in his capacity as a witness or on oath. Therefore, to read such limitations or qualifications would be doing violence to its language and cannot, therefore, be imposed as pre-condition for its applicability.

Reference to sub-section (4) of section 313 of the Code is also apposite. It reads thus : -

The answers given by the accused may be taken into consideration in such inquiry or trial, and put in evidence for or against him any other inquiry into or trial for, any other offence which such answers may tend to show he has committed.

As pointed out in the decision in Sawai Singh''s case. 1987 (1) MPWN 73. absence of opportunity for cross-examination constitutes a fatal blow. The right to cross-examine opposite party''s witness constitutes an essential part of the procedure established by law, referred to in Article 21 of the Constitution of India. As pointed out in the decision in Sheikh Salim''s case. 1985 JLJ 28. the procedure has to be reasonable and right and just and fair. According to the decision in The State of Punjab Vs. Bhagat Ram, . opportunity to cross-examine witnesses without their earlier statements having been given to the delinquent Government servant cannot be characterised as reasonable opportunity to defend himself as envisaged under Article 311 of the Constitution because he will not be able to have an effective and useful cross-examination. From the foregoing discussion it follows that the view taken by the learned Sessions Judge results in denial of the due procedure and is detrimental to the cause of justice. It is pertinent to note that the provision, unlike section 162(11) of the Code is not in negative terms. The provision extracted above pertains to offence of which the maker comes to be accused of and has rightly been placed in the Code of Criminal Procedure. There is nothing in it to bar the use of a previous statement in writing for contradiction as provided u/s 145 of the Evidence Act. No inhibition regarding its use for the purpose envisaged by the second part of section 145 of the Evidence Act can reasonably be read in it. Any other construction of sub-section (4) of section 313 of the Code would render it inconsistent with the provision embodied in sections 145 and 155 of the Evidence Act.

As a result of the foregoing discussion I find that the view taken by the learned Sessions Judge being wholly unwarranted by law makes the case pre-eminently a fit one where this Court should step in to exercise its inherent powers u/s 482 of the Code for securing the ends of justice and in order to obviate violation of the fundamental right guaranteed under Article 21 of the Constitution which provides that no person shall be deprived of his life or personal liberty except according to the procedure established by law.

In the result, the application u/s 482 of the Code is allowed. The impugned orders are set aside. The case is remanded and it is directed that the learned

Additional Sessions Judge shall allow the previous statement recorded u/s 3l3 of the Code to be used as provided u/s 145 of the Evidence Act. The parties are directed to appear before the learned Additional Sessions Judge Mandleshwar on 5-5-1987.