SUPREME COURT OF INDIA
Altamas Kabir, CJI., M. Yusuf Eqbal and Vikramajit Sen, JJ.
State of N.C.T. of Delhi – Appellants
Vs.
Mukesh - Respondent
Crl. A. No. 698 of 2013 (Arising out of SLP (Crl.) No. 2637 of 2013)
Decided On : 03.05.2013
Evidence Act, 1872 - Section 146 - Code of Criminal Procedure, 1973 - Section 161 – Tenant – Attempt to bring in evidence by way of cross-examination – Condo nation of delay - In said circumstances question which arises is, whether, under the provisions of Section 145 of the Evidence Act, a subsequent statement made after the filing of the charge-sheet could be treated as a previous statement and be utilized for purposes of Section 145 thereof - For sake of reference Section 145 of Evidence Act is extracted herein below learned Solicitor General urged that view taken by the High Court could result in serious consequences in the matter of holding of trials on account of the fact that attempt to bring in evidence by way of cross-examination of a prosecution witness, in regard to statements made after filing of charge-sheet, would be contrary to provisions of Section 145 of Evidence Act as well as Section 161 of the Code of Criminal Procedure, 1973 – Held, Coupled with above is fact that statement made is not a statement before Police authorities as contemplated under Section 161 of Code - It is not that electronic evidence may not be admitted by way of evidence since specific provision has been made for same under Section 161 of Code as amended, but question is whether same can be used as indicated in Section 161, for purposes of investigation - If one were to read proviso to Sub-section (3) of Section 161 of Code which was inserted with effect from it will be clear that statements made to police officer under Section 161 of Code may also be recorded by audio-video electronic means but same does not indicate a statement made before any other Authority which can be used for purposes of Section 145 of Evidence Act - Decision referred to by learned Counsel in case of has to be read and understood in that context - Said decision appears to have been rendered in a situation where at every stage prosecutions attempts to adduce evidence was being objected to on behalf of accused - It is in such circumstances that decision was rendered - This is a case where however, an attempt of defense to introduce evidence which is not contemplated within scheme of Code or the Evidence Act was before Court and Court decided that same could not be permitted - Decision in case of cannot therefore be applied to facts of this case In this regard reference may be made to the decision rendered by a Bench of six Judges of this Court in Singh and Ors. v. State of Uttar Pradesh wherein in somewhat similar circumstances it was stated that previous statement would be such statements as made during investigation – Accordingly court allow appeal set aside judgment of High Court and restored that of Trial Court– Appeal allowed
ORDER :
1. Leave granted. This appeal is directed against the judgment and order dated 7th March, 2013, passed by a learned Single Judge of the Delhi High Court in Criminal Revision Petition No. 124 of 2013. By his said order, the learned Judge set aside the order passed by the Trial Court rejecting the prayer made on behalf of the accused to confront P.W. 1 with a statement made by him in a Television interview on Zee News on 8th February, 2013, after the filing of the charge-sheet, for the purpose of contradicting him with his previous statement in order to test his veracity and to impeach his credibility, as provided for under Section 146 of the Evidence Act, 1872.
2. The learned Solicitor General urged that the view taken by the High Court could result in serious consequences in the matter of holding of trials on account of the fact that the attempt to bring in evidence by way of cross-examination of a prosecution witness, in regard to statements made after the filing of the charge-sheet, would be contrary to the provisions of Section 145 of the Evidence Act as well as Section 161 of the Code of Criminal Procedure, 1973 ['Code', for short].
3. In the instant case, on the basis of certain statements made by P.W. 1, the complainant, and other material, a charge-sheet had been filed by the Investigating Authorities against the Respondent. After the charge-sheet had been filed, the complainant appears to have given a T.V. interview on Zee News on the same subject. In the said circumstances, the question which arises is, whether, under the provisions of Section 145 of the Evidence Act, a subsequent statement made after the filing of the charge-sheet could be treated as a "previous statement'' and be utilized for the purposes of Section 145 thereof. For the sake of reference, Section 145 of the Evidence Act is extracted hereinbelow:
45. Cross-examination as to previous statements in writing.----- 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.
4. The learned Solicitor General also referred to the provisions of Section 162 of the Code, from which he pointed out that the statement made to the police under Section 161 of the Code was not to be signed and, in any event, no statement made by any person to a police officer in the course of the investigation should, if reduced to writing, be signed by the person making it, nor should any such statement or any record thereof, whether in a police diary or otherwise or any part of such statement or record, be used for any purpose, save as indicated in the section itself The learned Solicitor General pointed out that, in the proviso to Sub-section (1), it has been indicated that, when any witness is called by the prosecution in such inquiry or trial, whose statement has been reduced into writing, any part of his statement, if duly proved, may be used by the accused and with the permission of the Court, by the prosecution, to contradict such witness in the manner provided by Section 145 of the Evidence Act, and when any part of such statement is so used, any part thereof may also be used in the reexamination of such witness, but for the purpose only of explaining any matter referred to in his cross-examination. The learned Solicitor General sought to emphasise the fact that the aforesaid provisions all indicate that, for the purposes of the prosecution witnesses, statements made prior to the filing of the charge-sheet could be used for the purpose of either Section 145 of the Evidence Act or Section 161 of the Code. According to him, the scheme of the Code as well as the Indian Evidence Act clearly indicates that only such statements, as made by th
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