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Punya Prasad Sankota and anr. Vs. Balvadra Dahal and anr. - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtSikkim High Court
Decided On
Judge
Reported in1985CriLJ159
AppellantPunya Prasad Sankota and anr.
RespondentBalvadra Dahal and anr.
Cases ReferredAbdul Majid v. King
Excerpt:
- - 4. but what the learned judicial magistrate failed to notice was that if section 162 did not apply to these statements recorded by the police for their not having been recorded in the course of any investigation under chap. whatever may be the effect of the violation of this prohibition, and whether or not such signature would give rise to the impression that the maker of the statement being thus tied to a signed statement may not be a free and a reliable witness, there should be no doubt that a statement otherwise covered by section 162 would continue to be governed thereby notwithstanding such infraction......refused to allow the accused to contradict the prosecution witnesses with reference to their previous statements recorded by the police on the ground that such statements were not recorded by the police in the course of any investigation under the provisions of chap. xiv of the cr.p.c. 1898, and, therefore, could not attract the provisions of section 162(1) of the code, under the proviso' whereof the accused is entitled to contradict the prosecution witnesses with reference to their previous statements only when those are recorded by the police in the course of any investigation under chap. xiv of the code. in sikkim, cr.p.c. of 1973 has not yet been extended and we are still governed by the earlier code of 1898. but it may be noted that the provisions of section 162 of the new.....
Judgment:

Bhattacharjee, J.

1. The learned Judicial Magistrate refused to allow the accused to contradict the prosecution witnesses with reference to their previous statements recorded by the police on the ground that such statements were not recorded by the police in the course of any investigation under the provisions of Chap. XIV of the Cr.P.C. 1898, and, therefore, could not attract the provisions of Section 162(1) of the Code, under the proviso' whereof the accused is entitled to contradict the prosecution witnesses with reference to their previous statements only when those are recorded by the police in the course of any investigation under Chap. XIV of the Code. In Sikkim, Cr.P.C. of 1973 has not yet been extended and we are still governed by the earlier Code of 1898. But it may be noted that the provisions of Section 162 of the new Code of 1973 are almost verbatim reproduction of the provisions of Section 162 of the Code of 1898, save for the new Explanation added to the section in the Code of 1973 ; the new Explanation, however, has not introduced any new principle, but has endeavoured to set at rest the sharp clea vage of opinion among the different High Courts, sought to be sealed by the Supreme Court in Tahsildar Singh v. State of Uttar Pradesh : 1959CriLJ1231 , followed in the Dahyabhai v. State of Gujarat : 1964CriLJ472 , as to when an omission to state a fact or circumstance in the statements recorded may also amount to contradiction.

2. The learned Judicial Magistrate having denied to the accused the right to contradict the prosecution witnesses with reference to their previous statements recorded by the police, the accused moved the Court of Session in revision and the tearned Sessions Judge has, under Section 438 of the Code, reported the case for orders of this Court as he was of the opinion that if, as held by the Judicial Magistrate, the previous statements were not recorded in the course of any investigation within the meaning of Section 162, then the statements would all the more be available to the accused under Section 145, Evidence Act to contradict the makers of those statements when deposing as witnesses. Having heard the learned Counsel for the petitioners and the respondents and also the learned Government Advocate and having gone through the records ourselves, we have no doubt that the revision must be accepted and the order of the learned Judicial Magistrate must be set aside.

3. Both the Courts have accepted, and so have all the learned Counsel appearing before us, that the investigation by the police in this case was not ordered under Section 156(3), where under the Magistrate empowered under Section 190 can proceed to outer investigation before taking cognizance of the case, but was ordered under Section 202 of the Code, where under a Magistrate other than a Magistrate of the third class may, before issuing process and in order to decide as to whether process should be issued, may direct an investigation to be made by any police officer for the purpose of ascertaining the truth or falsehood of the complaint. Such an investigation under Section 202, which occurs in Chap. XVI, is obviously not an investigation within the meaning of Section 162 which expressly refers and confines itself to 'investigation under this Chapter', meaning thereby the Chap. XIV wherein Section 162 occurs. It is, therefore, obvious that the statements recorded in the course of such an investigation, even though recorded by a police officer, would not come within the purview of Section 162. The expression 'investigation under this Chapter' in Section 162 would obviously exclude all investigations under, any provision in any other Chapter of the Code and would accordingly exclude the investigation under Section 202 in Chap. XVI or investigation under Section 196-B in Chap. XV and, therefore, any statement, whether recorded by a police officer or not, in any such investigation would not be a statement to which the provisions of Section 162 would apply. Though no citation should be necessary for so obvious a proposition, yet reference may be made to the Full Bench decision of Allahabad High Court in Shyamlal v. King-Emperor AIR 1949 All 483, : 50 Cri LJ 719. The learned Judicial Magistrate, therefore, was right in holding that since these statements were not recorded in the course of any investigation under Chap. XIV, Section 162 could not be attracted to the statements recorded in such investigation.

4. But what the learned Judicial Magistrate failed to notice was that if Section 162 did not apply to these statements recorded by the police for their not having been recorded in the course of any investigation under Chap. XIV, then the prohibition against the use of any such statement as enacted in Section 162(1) also would not apply and. therefore, such statements would be available for any purpose for which they are allowed to be used under the law. The learned Judicial Magistrate ought to have noted that when the maker of previous statement is examined as a witness, such previous statement can be used under the provisions of the Evidence Act to contradict him under Section 145, to impeach his credit under Section 155(3), to corroborate his testimony under Section 157 and to refresh his memory under Section 159 of that Act. Once the learned Judicial Magistrate found Section 162 to be out of the way and did not find any other provision of law to stand in the way, he ought to have realised that the previous statements of the witnesses were available for the purpose of cross-examination, contradiction, corroboration and refreshing of memory of the witnesses under the provisions of law noted above. It is not, as the learned Judicial Magistrate thought, that a previous statement recorded by a police in order to be available to contradict the evidence of the maker, must be recorded in the course of an investigation under Chap. XIV and that only when so recorded they can be used for the purpose of contradicting a witness under the proviso to Section 162(1). On the other hand, when such statement is not so recorded in the course of any investigation under Chap. XIV, and, therefore, such statement does not attract Section 162, the right to use such previous statement becomes much wider, because while a previous statement covered by Section 162(1) can be used only to contradict the maker under the proviso thereto, a previous statement not covered by Section 162 can be used for cross-examination, contradiction, corroboration and also refreshing the memory of the maker of the statement when deposing as a witness.

5. One word more. Statements recorded by the police during the course of the investigation in this case were signed by the makers and a question accordingly cropped up during the arguments that whether a statement, though otherwise covered by Section 162, would cease to be so because of such signatures made or obtained in violation of Section 162(1) providing that no such statement shall be signed by the person making it. Whatever may be the effect of the violation of this prohibition, and whether or not such signature would give rise to the impression that the maker of the statement being thus tied to a signed statement may not be a free and a reliable witness, there should be no doubt that a statement otherwise covered by Section 162 would continue to be governed thereby notwithstanding such infraction. That is also what appears to have been decided in the Calcutta decision in Abdul Majid v. King : AIR1950Cal165 . But since the statements in this case have been held to be covered by Section 162 for not having been recorded in the course of any investigation under Chap. XIV, this question need not be pursued any further.

6. We accordingly accept and allow the revision and set aside the impugned order of the learned Judicial Magistrate dt. 31-7-1982, refusing the accused the right to cross-examine the prosecution witnesses with reference to their previous statements recorded by the police. Records to go down at once.


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