The denial of the opportunity to examine a Magistrate who recorded a witness's prior statement constitutes a denial of justice, impacting the ability to prove contradictions.

ORDER :

G.GIRISH, J.

The order dated 18.11.2023 of the Additional Sessions Court, Irinjalakuda, in CMP No.283/2023 in S.C.No.823/2021, disallowing the request of the accused Nos.2 & 5 in the said case to summon the Judicial First Class Magistrate concerned, who recorded the statement of PW3 under Section 164 of the Code of Criminal Procedure, 1973(in short, ‘Cr.PC’), is under challenge in this petition filed under Section 482 Cr.PC.

2. The aforesaid case relates to the murder of a lady, who was the aunt of PW3. PW3, the eyewitness to that incident, was aged only 15 years at the time of incident. At the time of investigation, his statement was recorded by the Judicial Magistrate concerned, under Section 164 Cr.PC. During the course of trial before the Sessions Court, PW3 gave evidence about the act of accused Nos.1 to 3 mounting physical assault upon the deceased by slashing her with a dagger, stabbing with knife and exploding hand grenade. He was cross-examined at length by the learned counsel for the accused. However, no contradictions were marked. At the time of defence evidence, the accused sought to examine the Magistrate who recorded the statement of PW3 under Section 164 Cr.PC. The above request was rejected by the learned Additional Sessions Judge, mainly for the reason that, in respect of the previous statements given by the above witness to the learned Magistrate, no contradictions were marked at the time of cross-examination of PW3. Another reason cited by the learned Additional Sessions Judge was that the improvements made during cross-examination of the witness cannot be portrayed as material omissions, and hence the examination of the learned Magistrate was not required for proving omissions amounting to contradictions. Aggrieved by the above rejection of the request of the accused for the examination of the Judicial First Class Magistrate, Kodungallur, as a defence witness, the petitioners/accused Nos.2 & 5 are before this Court with this petition.

3. Heard the learned counsel for the petitioners, Adv. Mr John S. Ralph, the learned Amicus Curiae and the learned Public Prosecutor representing the State of Kerala.

4. On going through Annexure-3 testimony of PW3 before the Additional Sessions Court and Annexure-2 statement given by PW3 under Section 164 Cr.PC to the learned Magistrate, it is seen that four contradictions on material aspects were brought out during cross-examination, but the learned counsel who conducted the cross-examination did not take any effort to get the relevant portions of the previous statements of the witness provisionally marked for the purpose of getting it proved through the judicial officer who recorded the previous statement of the witness. As regards omissions amounting to contradiction, it is seen that three instances of significant and relevant aspects pertaining to the previous statement given to the learned Magistrate were brought out during cross-examination of PW3. Therefore, the examination of the learned Magistrate before the Additional Sessions Court was inevitable for proving the above omissions in the prior statement of the witness.

5. In the guidelines formulated by the Hon’ble Apex Court in Criminal Trials Guidelines regarding Inadequacies and Deficiencies In Re v. State of Andhra Pradesh & Ors. [(2021) 10 SCC 598], Clause 10 Sub-Clause (v) makes it clear that omnibus marking of the entire statement under Sections 161 & 164 Cr.PC shall not be done. Sub-clause (i) & (iv) of Clause 10 of the above guidelines make it clear that the relevant portion of the statements recorded under Section 164 Cr.PC used for contradicting the respective witness shall be extracted or indicated specifically with the opening and closing words of the relevant portions through distinct marking for the purpose of proving those portions by putting it to the person who recorded it.

6. Following the directions of the Hon’ble Apex Court in the aforesaid decision, Rule 56A has been incorporated in the Kerala C