Patna High Court
Doman Mahton vs Surajdeo Prasad on 6 December, 1968
Equivalent citations: AIR1970PAT95, 1970CRILJ350, AIR 1970 PATNA 95, 1970 BLJR 926
ORDER
1. This application is by an accused person in a criminal case before a Munsif Magistrate, Monghyr, where the question arose as to whether the attention of a witness could be drawn in cross-examination to the previous statement made by him in another case.
2. The facts are these, At 9.15 A. M., on 27-4-1965, the petitioner, who is a Low Tension Fuseman of Bihar State Electricity Board at Lakhisarai, filed a case of assault, at Police Station Lakhisarai, against the opposite party, who was arrested and later on released on bail on the same day by the police. The said case was registered as G.R. Case No. 668 of 1965. The opposite party was a Member of the Lakhisarai Notified Area Committee thereinafter referred to as 'the Area Committee'). The Police examined one Jamadar of the Area Committee named Ramgovind Prasad. After investigation, the Police submitted charge sheet, and the trial is now pending in the Court of the Munsif Magistrate at Monghyr.
3. It appears that in respect of the above incident, the opposite party also filed a complaint for various offences, such as Sections 323, 352, 504, 379 and 109 of the Penal Code, before the Sub-divisional Officer, Monghyr, on 29-4-1965. Cognizance was taken and the trial is also proceeding before the said Munsif Magistrate at Monghyr, namely, Shri Raghuraj Singh, and it is registered as Case No. 239C of 1965.
4. When the trial of the complaint case filed by the opposite party, Surajdeo Prasad, was taken up by the Munsif Magistrate, a number of witnesses were examined and cross-examined; and when Ramgovind Prasad was examined, and was being cross-examined after charge, the cross-examining lawyer on behalf of the petitioner, wanted to draw the attention of the witness (P. W. 5) to certain statements made by him before the Police in the earlier case, namely, No. 668 of 1965, to contradict his statement given in court in the present trial, but the same was disallowed by the Court. The learned Munsif Magistrate in his order dated 23-1-1968, has observed that under Section 162 of the Code of Criminal Procedure, the statement of a witness made before the Police could be brought into evidence in the same case, and as, no statement of this witness had been taken in this case, nor did the Police make investigation in this case, the defence lawyer was directed not to draw the attention of the witness in this case to the statement made by him before the Police in the counter-case. The present application is directed against the said order.
5. We have heard learned Counsel for the parties, and the sole question that arises for consideration is whether the statement of Ramgovind Prasad, who has been examined as prosecution witness No. 5 in this case, which he had made in the course of the investigation in the earlier counter-case, could be used, and whether he could be confronted with the statements then made. Mr. Dinesh Charan, appearing in support of the petition, has urged that the learned Munsif Magistrate was in error, and has drawn our attention to note 12 to Section 162 in Chita-ley's Code of Criminal Procedure, 6th Edition, volume I, which may be reproduced here:--
"At any inquiry or trial in respect of any offence under investigation at the time when such statement was made."
A is alleged to have murdered X, In the course of the investigation by the Police into the case of murder, B makes a statement to the Police Officer. Can B's statement be used in a subsequent inquiry or trial unconnected with the murder case? Before the amendment of 1923 there was a conflict of opinion on the point: some decisions holding that it could not be used and others holding that it could be used. The section as amended in 1923 made it clear that statements made during the course of investigation could be used in a subsequent case which was not under investigation when the witness made the statement. Although this section was again amended in 1955 the legal position in this regard remains unchanged because even after the amendment the wording of the section continues to be the same as under the old section so far as this part of it is concerned."
6. There can be no doubt that the provisions of Section 162 of the Code of Criminal Procedure do not apply to statements made in an investigation other than that which results in a trial in which those statements are sought to be used. The object is obvious, as will appear from the provisions of Section 145 of the Evidence Act which reads thus:--
"A witness may be cross-examined as to previous statements 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."
Further, if it is intended to impeach the credit of a witness, as is provided under Section 155 of the Evidence Act, then the credit of a witness may be impeached by the adverse party, or, with the consent of the Court, by the party who calls him, by various ways, one of which is as provided by Sub-section (3) of Section 155 of the Evidence Act; namely, by proof of former statements inconsistent with any part of his evidence, which is liable to be contradicted. Impeaching the credit of a witness, either under Section 145 of the Evidence Act (written statements), or under Section 155 thereof (oral statements), can be done by drawing his attention to those statements, whether written or oral, Further, those parts of the statement before the Police, which are intended to be used in cross-examination, to contradict the witness, must be proved and brought on the record. This can ordinarily be done by the admission of the witness that he had made the statement, or, by examination, of the Police Officer who recorded it.
7. For these reasons, we are satisfied that the learned Munsif Magistrate was In error in not permitting the petitioner to draw the attention of the witness, for the purpose of cross-examination, to his earlier statements made before the Police, which was reduced into writing, or submitted by the witness in writing before the Police, in the counter-case. Accordingly, the order of the learned Munsif Magistrate dated 23-1-1968 in this respect is set aside, and the cross-examination of Ramgovind Prasad (P. W. 5) on the statements said to be made by him at the time of the investigation into the counter-case, must proceed. The application is, therefore, allowed.