Karnataka High Court
R. Lakshminarayanan vs Inspector Of Police Cbi on 22 September, 2005
Equivalent citations: 2005CRILJ4621, ILR2005KAR5479, 2006(6)KARLJ443, 2005 CRI. L. J. 4621, 2005 AIR - KANT. H. C. R. 2703, (2005) ILR (KANT) 5479, 2006 (1) KCCR 13 SN, (2006) 6 KANT LJ 443, (2006) 1 RECCRIR 187, (2006) 1 CURCRIR 414, (2006) 1 ALLCRILR 450
Author: Mohan Shantanagoudar
Bench: Mohan Shantanagoudar
ORDER Mohan Shantanagoudar, J.
1. With the consent of both parties, matter is taken up for final disposal. Heard both the Counsels and perused the material on record.
2. Assailing the correctness of the order dated 15.03 2004 passed by the XXI Additional City Civil and Sessions Judge, Bangalore in Criminal Revision Petition No. 465/2003 Whereby, the learned Sessions Judge has dismissed the revision petition confirming the order dated 16.03.2001 passed by the learned 1st Additional Chief Metropolitan Magistrate in C.C. No. 2251/1994, by which the application filed by the petitioner Under Section 91 Cr. P.C. to call for the statements of PW-3(CW-4) made before the Reserve Bank of India as well as before the Inspector of Police of C.B.I in R.C. No. 18/ 1992, is rejected.
3. The application filed by accused-petitioner herein Under Section. 91 of Cr.P.C., discloses that C.W. 3 R. Ganesh (P. W. 4) has made certain statements before the Central Bureau of Investigation (CBI for short) and before the Reserve Bank of India (RBI for short) relating to and concerning the matter in issue in the present case; but the prosecution has not chosen to secure those documents nor have they furnished the copies of those documents to the accused; that the earlier statements made by said R. Ganesh (P.W.4) are very much crucial for the defence of the accused-petitioner herein; that the documents sought to be called for, contradict the statements made by said P.W. 4 Under Section. 162 Cr. P.C. in this case and that therefore, those documents are very much required for the purpose of cross examination of P.W.4 to bring out the truth as the said statements would demonstrate that the statements of P.W. 4 recorded Under Section. 162 of Cr.P.C., in this case, is not true and correct; and that those documents are necessary for the Court to arrive at the just conclusion. In the said application, the accused-petitioner has sought for the following documents:
i) Letters/statement of Sri. R. Ganesh made to Reserve Bank of India on 30.06.1992 and 02.07.1992 which is available in the file of RBI pertaining to the transactions of ABFSL with Fair Growth Financial Service Ltd.,
(ii) Statement made by CW 3 Sri. R. Ganesh before the Inspector Sri. A.P. Gopalakrishnan, of CBI in R.C. No. 18/1992(8) dated 30.09.1992. 17.10.1992 and 23.11.1992 available in the custody of CBI.
4. After hearing both sides, the Courts below have concurrently held that the statement of C.W. 3 (P.W.4) recorded Under Section. 161 of Cr.P.C., in another case cannot be used for the purpose of contradicting the statement made by said witness in this case and that those documents may not be necessary material for deciding the case on hand.
5. Sri. B .C. Seetharamarao learned Advocate for the petitioner, reiterating the aforesaid contentions in his arguments inter alia contended that P.W.4 namely R. Ganesh is a crucial witness in the case and he has made certain statements before the 'CBI' as well as 'RBI' pertaining to the facts in issue in this case. Those statements made by P.W.4 before the CBI & RBI directly contradict with the statement made by him in this case recorded Under Section. 162 of Cr. PC. and that therefore, to assess the evidence of P.W.4 it is just and necessary to secure the aforesaid documents. On these grounds, he prays for setting aside the orders passed by the Courts below.
Per contra, Sri.K. Ravishankar, learned Advocate appearing for Sri. Ashok Harnahalli, appearing for the 'CBI, by placing reliance on the judgments of the Apex Court in the case of State of Kerala v. Babu and Ors., (1999) 4 Supreme Court Cases 621 and in the case of The Assistant Collector of Customs, Bombay and Anr. v. L.R. Melwani and Anr., AIR 1970 Supreme Court 962 argued in Support of the impugned orders.
6. On reading of Section 162 of Cr. P.C. and Section 145 of Evidence Act and bearing in mind the object of the said sections it is clear that an accused in a criminal trial has the right to make use of the previous statements of a witness including the statements recorded by the investigating agency during the course of an investigation for the purpose of establising a contradiction in the evidence of a witness or to discredit the witness. But the question for consideration is, how does the accused exercise this right with reference to a previous statement of a witness made in another case which is recorded by the investigating officer in that case under the provision of Section 162 of Cr.P.C?. This right, certainly does not flow from Section 162 of Cri.P.C. read with Section 145 of the Evidence Act nor does it flow from Section 172 of Cr.P.C., nor is the accused is entitled to these previous statements under Section 207 of the Code. But the accused is not denied of his limited benefit of using the said previous statements given during the course of another investigation. The answer to this question lies in Section 91(1) of Cr. P.C. The language of Section 91 of he Code is much wider than the language of Section 172, Section 161 and 162 of Cr.P.C. If that be so and if the Court comes to the conclusion that production of such document is necessary or desirable, then the Court is entitled to summon the case diary of another case under Section 91 of the Code dehors the provisions of Section 172 of the Code for the purpose of contradicting a witness by using the statement made in the case diary of another case.
7. It is well-settled law that the case diary maintained Under Section. 172 of Cr.P.C., is a document as contemplated Under Section. 91(1) of Cr.P.C. If the Court comes to the conclusion that production of such a document is necessary or desirable, then the Court is entitled to summon the case diary of another case under Section 91 of the Code for the purpose of using the statements made in the said diary for contradicting a witness in another case. The Apex Court in the judgment reported in (1999) 4 SCC-621, cited supra, has observed thus:
"The language of Section 91 is much wider than the language of Section 172 and by no stretch of imagination it could be contended that the case diary maintained under Section 172 of the Code is not a document as contemplated under Section 91(1) of the Code. If that be so and if the Court comes to the conclusion that the production of such a document is necessary or desirable then, in our opinion, the Court is entitled to summon the case diary of another case under Section 91 of the Code dehors the provisions of Section 172 of the Code for the purpose of using the statements made in the said diary, for contradicting a witness. When a case diary, as stated above, is summoned under Section 91(1) of the Code then the restrictions imposed under sub-sections (2) and (3) of Section 172 would not apply to the use of such case diary but we hasten to add that while using a previous statement recorded in the said case diary, the Court should bear in mind the restrictions imposed under Section 162 of the Code and Section 145 of the Evidence Act because what is sought to be used from the case diary so produced are the previous statements recorded under Section 161 of the Code.
In this view of the matter, in our opinion, a case diary of another case not pertaining to the trial in hand can be summoned if the Court trying the case considers that production of such case diary is necessary or desirable for the purpose of trial, under Section 91 of the Code."
8. In view of the aforesaid dictum laid down by the Apex Court, there is no embargo for the Court to summon the statement made before the police in another case, if the Court trying the case considers that production of such statement is necessary and desirable for the purpose of trial, in exercise of its power Under Section. 91 of Cr.P.C.
9. Even otherwise, the ban imposed by Section 162 of the Code does not operate against the powers of the Court Under Section. 165 of the Evidence Act. Though the ban imposed Under Section. 162 of Cr.P.C. appears sweeping and wide, the powers of the Court Under Section. 165 of the Evidence Act to put any question to a witness are also couched in very wide terms authorising the Judge to ask any question he pleases, in any form, at any time, of any witness, or of the parties, about any fact relevent or irrelevent, in order to discover or to obtain proper proof of relevant facts. The language in Section 162 of the Code, though wide, is not explicit or specific enough to extend the prohibition to the use of the wide and special powers of the Court to question a witness, expressly and explicity provided Under Section. 165 of the Evidence Act in order to secure the ends of justice. Thus, Section 162 of the Code does not impair the special powers of the Court Under Section. 165 of the Evidence Act. In this connection, a reference may be made to the Judgment of the Apex Court in the case of Raghunandan v. State of U.P., AIR 1974 Supreme Court-463 wherein it is observed thus:
"It is true that the ban, imposed by Section 162 Criminal Procedure Code against the use of a statement of witness recorded by the Police during investigation, appears sweeping and wide. But, at the same time, we find that the powers of the Court, under Section 165 of the Evidence Act, to put any question to a witness, are also couched in very wide terms authorising the Judge "In order to discover or to obtain proper proof of relevent facts" to "ask any question he pleases, in any form, at any time, of any witness, or of the parties, about any fact relevant or irrelevent". The first proviso to Section 165 Evidence Act, enacting that, despite the powers of the Court to put any question to a witness, the judgment must be based upon facts declared by the Act to be relevant, only serves to emphasize the width of the power of the Court to question a witness. The second proviso in this Section preserves the privilages of witnesses to refuse to answer certain questions and prohibits only questions, which would be considered improper under Sections 148 and 149 of the Evidence Act. Statements of witnesses made to the police during the investigation do not fall under any prohibited category mentioned in Section 165 of Evidence Act. If Section 162 Criminal Procedure Code was meant to be so wide in its sweep as the Trial Court thought it to be, it would make a further in road upon the powers of the Judge to put questions under Section 165 Evidence Act. If that was the correct position, at least Section 162. Criminal procedure Code would have said so explicitly. Section 165 of the Evidence Act was already there when Section 162 Criminal Procedure Code was enacted.
It is certainly quite arguable that Section 162 Criminal Procedure Code does amount to a prohibition against the use even by the Court of statements mentioned there. Nevertheless, the purpose of the prohibition of Section 162 Criminal Procedure Code being to prevent unfair use by the prosecution of statements made by witnesses to the police during the course of investigation, while the proviso is intended for the benefit of the defence, it would also be urged that, in order to secure the ends of justice, which all procedural law is meant to sub-serve, the prohibition, by taking into account its purpose and the mischief it was designed to prevent as well as its context must be confined in its scope to the use by parties only to a proceeding of statements mentioned there.
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 of 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 does not impair the special powers of the Court under Section 165 Indian Evidence Act."
Thus, in my considered opinion, both the Courts below are not justified in holding that the statement made in another case recorded Under Section. 161 of Cr.P.C. cannot be made use of in this case.
10. It is not in dispute that P.W.4 has made certain statements before the Inspector of Police 'CBI' in R.C. No. 18/1992 (S) on 30.09.1992, 17.10.1992 and 23.11.1992 and the said statements are part and parcel of the charge sheet filed by the 'CBI' in the Court at Bombay. According to petitioner, the present case is offshoot of R.C. No. 18/92. so also, said Sri. Ganesh (P.W.4) has also written certain letters to 'RBF on 30.06.1992 and 02.07.1992 which are available on the file of 'RBI' pertaining to the transaction relating to Fair Growth Financial Service Ltd. According to the accused petitioner herein, the statements made by P.W.4 in those documents directly contradict with the statement made by him in the case on hand, before the Police Inspector, 'CBI' recorded Under Section. 161 of Cr. P.C. Thus, if those documents are called for, no prejudice would be caused to the prosecution. On the other hand, the said documents will certainly throw some light on the dispute in question and those documents may be helpful for the Trial Court to arrive at the just conclusion. If the statements made by PW4 in the aforesaid documents support the statement made by him in this case recorded by the police Under Section 161 of Cr. P.C. the same will enure to the benefit of prosecution to prove its case beyond reasonalbe doubt. If really the said statements made by P.W.4 are contradictory to the statements made by him in this case, then the accused-petitioner is entitled to have the benefit of doubt by showing to the Court that the statements made by C.W.3 in this case are false and incorrect.
11. In this view of the matter, I feel that the contention of the learned Counsel for the petitioner is well founded. As the case is still at the stage of recording the evidence of prosecution, no harm or prejudice will be caused to the prosecution, if the said documents are called for. By considering the matter from any angle, I am of the view that the said documents are necessary for the purposes of proper adjudication of the matter and to arrive at just and proper conclusion in the trial. The aforsaid aspect of the matter is not considered by both the Courts below in proper perspective, while rejecting the application filed on behalf of the accused-petitioner herein. Both the Courts below have not applied their mind to the facts of the case while arriving at the conclusion. They have simply observed that those documents may not be necessary for the decision in this case. Absoultely no proper reasons are assigned by the Courts below to conclude as to how the documents to be called for are irrelevant for the purpose of deciding this case. Under such circumstances, this Court is of the considered opinion that both the Courts below have erred in rejecting the application filed on behalf of the accused-petitioner herein Under Section. 91 of Cr.P.C. Consequently, the orders in question are liable to be quashed. Hence, the following order is made.
Criminal Petition is allowed. The impugned order dated 15.03.2004 passed by the XXI Additional City Civil and Sessions Judge in Criminal Revision Petition 465/2003 and the order dated 16.03.2001 passed by the 1st Additional Chief Metropolitan Magistrate, Bangalore in C.C. No. 2551/1994 are set aside. The application filed on behalf of the accused-petitioner Under Section. 91 of Cr.P.C. is allowed. The Trial Court is directed to summon the records mentioned in the application filed by the petitioner and thereafter proceed with the matter in accordance with law, without being influenced by any of the Observations made during the course of this order.
While using the said previous statements, the Trial Court should bare in mind the restrictions imposed under Section 162 of Cr.P.C. and Section 145 of Evidence Act.