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IN THE HIGH COURT OF TRIPURA AGARTALA
S. TALAPATRA, J.
Dulal Saha, son of late Dayal Hari Saha – Petitioner
Versus
The State of Tripura – Respondent
Crl. Petn. No.03 of 2018
Decided On : 03-04-2018
Cross Examination - Criminal Procedure - Section 137, Section 145 of Evidence Act, 1872, Section 162 of Cr.P.C. - The court discussed the provisions of Section 137 and Section 145 of the Evidence Act, 1872, and Section 162 of the Cr.P.C. The court emphasized the right of the defense to cross-examine witnesses and the process of contradicting or recording omissions in previous statements under Section 145 of the Cr.P.C. The court highlighted the distinction between the general right of cross-examination under Section 137 and the specific form of cross-examination under Section 145 of the Evidence Act, and emphasized the importance of relevance and the latitude provided to the defense in cross-examination.
Fact of the Case:
The defense filed a petition under Section 482 of the Cr.P.C. challenging the order of the Addl. Sessions Judge, West Tripura, which restrained the defense from putting a question to the Investigating Officer in reference to the statement of a particular witness recorded under section 161 Cr.PC. The defense contended that they have the right to cross-examine the IO on any question in reference to the previous statement of a particular witness.
Finding of the Court:
The court observed that the defense has the right to cross-examine witnesses and emphasized the distinction between the general right of cross-examination under Section 137 and the specific form of cross-examination under Section 145 of the Evidence Act. The court held that the trial court erred in restricting the defense from asking relevant questions during cross-examination.
Issues: The issues revolved around the right of the defense to cross-examine witnesses and the process of contradicting or recording omissions in previous statements under Section 145 of the Cr.P.C.
Ratio Decidendi: The court emphasized the right of the defense to cross-examine witnesses and the distinction between the general right of cross-examination under Section 137 and the specific form of cross-examination under Section 145 of the Evidence Act. The court highlighted the importance of relevance and the latitude provided to the defense in cross-examination.
Final Decision: The petition was allowed, and the trial court was directed to allow the defense to put relevant questions, including the question that was barred to PW-12, during cross-examination.
Heard Mr. S. Kar Bhowmik, learned counsel appearing for the petitioner as well as Mr. S. Sarkar, learned PP appearing for the State.
2. By this petition filed under Section 482 of the Cr.P.C., the order dated 03.01.2018 delivered in ST(T-1) 45 of 2014 by the Addl. Sessions Judge, West Tripura, Agartala has been challenged. By the said order dated 03.01.2018 what has been observed and relevant for this case is as follows:
“On 10.11.17 in course of cross examination of First IO Smt. Madhavi Das (PW.12), this court restrained the defence to put a question to the IO in reference to the statement of a particular witness recorded under section 161 Cr.PC. Accordingly, defence filed a petition under section 137 r/w section 145 of Evidence Act to allow cross examination of PW.12 Madhavi Das with reference to the 161 Cr.PC statements recorded by her during investigation. On such petition the further cross examination was adjourned and subsequently, both parties were heard on the above petition. In course of hearing Ld. Counsel Mr. S. Kar Bhowmik appearing for the accused referred several authorities of Apex Court as well as High Courts including the High Court of Tripura and pointed out that defence has right to cross examine the IO on any question in reference to the previous statement of a particular witness which she reduced into writing.”
3. It transpires from the said order dated 03.01.2018 that the Addl. PP having appeared for the State has opposed any latitude by contending that no question can be put to the Investigating Officer in reference to the previous statement of any witness unless the attention of that particular witness was drawn to it, during his or her examination in the court affording opportunity to the witness to explain about any contradiction or omission in his evidence. In this regard, proviso to Section 162 of the Cr.P.C. has been referred to further contend that there is no scope for the defence to contradict the witness without taking the procedure as provided by Section 145 of Indian Evidence Act, 1872. The Addl. PP appearing for the State has repeated that the statement of a particular witness recorded during the examination of that witness where his or her attention was not drawn for purpose of underpinning contradiction and omission, the subsequent witness including the Investigating Officer cannot be asked any question over or related to that statement. After having referred to Tahsildar Singh vs. State of UP: AIR 1959 SC 1021 the defence counsel contended that if it was intended to underpin contradiction vis-à-vis the previous statement reduced in the writing, attention of the witness shall before the contradiction can be proved be drawn to those parts of it, which are to be used for purpose of contradicting him. Proviso to Section 162 of the Cr.P.C. provides right to the accused to make use of such statement to contradict a witness in the manner provided by Section 145 of the Evidence Act. It would be violence to the language of that proviso if the said statement be allowed to be used for the purpose of cross examining any other witness within the meaning of the first part of Section 145 of the Indian Evidence Act. The court below has observed that the principle as laid down by Tahsildar Singh (supra) cannot help the position as held by the defence counsel. A number of cases has been referred by the defence counsel but the trial court did not agree that those decisions support that position as held by the defence counsel and finally, it has been observed that there is no justified ground for the defence to file the petition for allowing them to cross-examine the said witness (Investigating Officer) on whether one particular witness had made a statement to him or not. The trial court in this context has further observed as follows:
“In the said judgment also Hon’ble High Court in para 15 observed that – What follows from the above discussion is that the counsel for the prosecution or the
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