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2017 Supreme(Bom) 2528
IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT NAGPUR
R.K. Deshpande, J.
Raju – Petitioner
Versus
State of Maharashtra – Respondent
Criminal Writ Petition No. 763 of 2017
Decided On : 06-10-2017
For the Petitioner: Shri H.V. Thakur.
For the Respondent: Mrs. S.S. Jachak.
The previous statements made before the Magistrate in a trial can be used under Section 145 of the Evidence Act for contradiction even in a de novo trial.
Headnote:
Indian Evidence Act - De Novo Trial - Sections 354 and 506 of IPC - Sections 7 and 8 of POCSO Act - 145 of Indian Evidence Act, 161, 164, 172 of CrPC - [SUMMARY]
Fact of the Case:
The accused sought permission to refer the testimonies of witnesses recorded before the Committal Court for contradiction in a de novo trial. The court had to determine the permissibility of using such statements under section 145 of the Indian Evidence Act.
Finding of the Court:
The court found that previous statements made before the Magistrate in a trial can be used under Section 145 of the Evidence Act for contradiction even in a de novo trial.
Issues: Permissibility of using previous statements of witnesses for contradiction in a de novo trial under section 145 of the Indian Evidence Act.
Ratio Decidendi: The language of Section 145 is wide and allows the use of previous statements made before the Magistrate in a trial for contradiction, even in a de novo trial.
Final Decision: The court quashed the order rejecting the application to refer the testimony of witnesses recorded before the trial Court and allowed the application.
R.K. Deshpande, J.
1. Rule, made returnable forthwith. Heard finally by consent of the learned counsel appearing for the parties.
2. The learned Additional Sessions Judge, Chandrapur in Special (POCSO) Case No. 29 of 2014 has passed an order on 09.03.2017 (Exhibit No. 19) rejecting the application filed by the accused for grant of permission to refer the testimonies of witnesses recorded before the Magistrate prior to committal of the case to the Special Court, for the purposes of contradiction. The Court has held that the witnesses can be contradicted only when their statement is recorded by Police under Section 161 of Criminal Procedure and there is no provision for using the statement previously recorded by committal Court, to contradict the witnesses. It holds that the accused has opted for de novo trial and the testimonies of the witnesses are washed out and therefore such course is not permissible.
3. The accused was prosecuted for the offences punishable under Sections 354 and 506 of the Indian Penal Code. The trial was over and at the time of delivering the judgment, the learned Magistrate found that the charges under sections 7 and 8 of Protection of Children from Sexual Offences Act are required to be added. The accused was asked for the option, which he exercised for de novo trial by filing Pursis at Exhibit 14A on 21.1.2017. The trial was committed to the Sessions Court. During the course of trial before the Special Court, the accused sought permission to refer the testimonies of the witnesses recorded before the Committal Court for the purposes of contradiction.
4. The question involved is, whether it is permissible under section 145 of the Indian Evidence Act to use such statements recorded by the Magistrate, to contradict the witnesses before the Sessions Court, upon exercise of the option by the accused for de novo trial.
5. In the decision of this Court in the case of Emperor vs. Pranshankar Shambhuram Raval and Another, AIR 1950 Bombay 14, it is held in para No. 3 as under:
3. As therefore the whole evidence of a witness who is re-summoned is to be recorded again, his previous deposition before another Magistrate cannot be treated as substantive evidence in the case, although it may be used for contradicting any fresh evidence given by him under Section 145, Evidence Act. The object with which the right has been given to the accused to demand that the witnesses previously examined should be recalled and reheard is that fee may, if he considers that he would otherwise be prejudiced, ask the Magistrate to form his own opinion about the credibility of those witnesses, whom he regards as material, and to base his decision on their evidence as recorded before him. As observed by Burn J. in Mudda Veerappa vs. Emperor, AIR 1935 (22) Mad. 318 at p.319: (36 Cr.L.J. 1265):
6. Relying upon the aforesaid decision, the learned Single Judge of Gujarat High Court in the case of Ushmaben Dineshbhai Gohel vs. State of Gujarat and Another, delivered on 04.09.2015 in Criminal Misc. Application No. 15654 of 2012, considered the question as to whether the deposition of the complainant recorded by the predecessor Court becomes inadmissible or nonexistent on account of de novo trial. In paragraph Nos. 31 and 32 of the said decision, it is held as under:
"31. In my view, what is prohibited under Section 326 (3) is consideration of the evidence recorded by the predecessor Court. To put in other words, when a case is tried as a summary case, a Magistrate, who succeed the Magistrate who had recorded the part or whole of the evidence, cannot act on the evidence so recorded by his predecessor. This, however, should not be construed as whenever the successor Court orders a de novo trial, the statement of the complaint and his witnesses recorded by the predecessor Court cannot be used for contradicting the complainant and his witnesses. Their previous statements do not become inadmissible or nonexistent on account of the de novo trial.
32
