K.P. Choyi vs Kocharakkan and another

T.C. Raghavan, J.—A short but interesting question devoid of many authorities arises for consideration in this case. The petitioner is the plaintiff and the respondents the defendants in a suit. After the witnesses on the side of the petitioner were examined and after one of the respondents was also examined, the petitioner applied to the court to call as a witness a police officer who recorded a statement from one of the respondents in an earlier criminal case u/s 161 of the Code of Criminal Procedure and also to mark the said statement for the purpose of cross-examining the said respondent u/s 145 of the Evidence Act. This prayer was refused by the Munsiff, and hence the civil revision petition. The Munsiff has given two reasons in his order for rejecting the prayer. The first is that the police officer who recorded the statement u/s 161 of the Code of Criminal Procedure had no power to administer oath; and the second reason is that the police officer need not have taken down the statement in is entirety, so that the statement need not have been a full statement. In other words, the reasoning is that the statement contemplated by section 161 of the Code is not a statement on oath, and it might also be only a summary of what was stated.

As we have already stated, the question appears to be devoid of authorities excepting one decision of the Andhra Pradesh High Court by Jagan Mohan Reddi J. in Malakala Surya Rao and Others Vs. Gundapuneedi Janakamma, . In an almost similar case the learned Judge held that the statement recorded by a police officer u/s 161 of the Code might be used in a civil proceeding u/s 145 of the Evidence Act to contradict the person in his cross-examination.

Section 161 (1) of the Code of Criminal Procedure authorises a police officer making an investigation to examine orally any person in connection with the case; and under subsection (2) of the section such person is bound to answer all questions put to him by such officer other than questions excepted by the sub-section. Subsection (3) allows the police officer to reduce the statement into writing too. Then follows section 162 (1), which says that such a statement reduced into writing by a police officer in the course of an investigation should not be signed by the person making the statement; and the statement or any record thereof should not be used for any purpose at an enquiry or trial in respect of any offence under investigation at the time when the statement was made. But, the proviso to the sub-section makes the use of such a statement possible under some circumstances mentioned in the proviso.

Section 145 of the Evidence Act says that a witness may be cross-examined as to previous statements made by him in writing or reduced into writing, etc. And section 162 of the Code enacts that a statement recorded u/s 161 should not be signed. The question is whether such a statement will be a statement within the scope of section 145 of the Evidence Act. Section 145 of the Evidence Act does not say that the statement coming within its scope should be a signed statement. Can it then be said that a statement not signed by the person making it is no statement at all? In this connection, the counsel of the petitioner has drawn our attention to the decision of the Supreme Court in Bhogilal Chunilal Pandya Vs. The State of Bombay, wherein Wanchoo J., speaking for the Court, has held that the word "statement" under the Indian Evidence Act can mean only "something that is stated", i.e., the primary meaning of the word in the English language, and not anything special or technical. The Supreme Court has held further that even if the statement was not communicated to another person, it is still a statement; and has also pointed out that a writing in a diary kept by a person might also be a statement in spite of its having not been communicated to anybody. In view of these, we make bold to state that a statement recorded by a police officer u/s 161 (3) of the Code of Criminal Procedure will be a statement in this sense even if it is not signed. Again, will such a statement cease to be a statement for the reason that it is not a word to word record of what was stated? On this also our opinion is that even a summary of what was stated will be a statement as the word has been interpreted by the Supreme Court.

The two reasons given by the Munsiff that the statement given to a police officer u/s 161 of the Code was not on oath and that the statement was not a word to word record--have therefore no force. Nowhere is it stated--either in section 161 of the Code or in section 145 of the Evidence Act--that the person who records the statement must have the authority to administer oath and the statement should be on oath. Even statements u/s 161 of the Code of Criminal Procedure are statements in the sense given by the Supreme Court in the decision cited above.

Another decision, which may not be directly in point, may also be noted. That is in Padmaraju Konetiraju v. Padmaraju Subbaraju (A.I.R. 1954 Mad. 1019) In that case the police recorded statements in a proceeding u/s 145 of the Code of Criminal Procedure; and when one such statement was sought to be used in cross-examining the person who gave it, it was objected to on the ground that section 161 of the Code was a bar. Balakrishna Ayyar J. held that the objection had no force, since the statement was recorded not in an investigation under Chapter XIV of the Code and the bar u/s 162 could apply only to a statement recorded in an investigation under Chapter XIV and that also to its use in "any enquiry or trial in respect of any offence under investigation at the time when the investigation was made." Though this decision is not directly in point, we point out the last portion of the observation, which indicates that the bar is only to the using of the statement in any enquiry or trial in respect of that offence which was under investigation then: the bar does not apply to its use in any other trial or proceeding. The result is that the revision petition has to be allowed and the petitioner be allowed to call the police officer as a witness and also to have the alleged statement marked. We do so. But, we make it clear that the statement, when it is marked, does not become substantive evidence in the case and it can be used only for the purpose of contradicting the witness as contemplated by section 145 of the Evidence Act. In the circumstances of the case, we direct both parties to bear their respective costs in the revision petition.