 they are mostly concerned with the previous statement of evidence. The mission, as this is Jankuma in his previous session has mentioned, that means, which is something which is missing from the previous statement. And the contradicts on the other hand is stating something what is different from what was stated previously. And even going by the set of judicial dicta, there is absolutely no precise benchmark to resolve the reliability of the versions which are spoken by the witnesses. Because we know, because normally no witness can have or he cannot be expected to possess a photographic memory and to recall the entire details of a particular incident. And rather there cannot be any perhaps more than one however subjective with me. I would say that the only thing is that it should inspire confidence in the mind of HHS. And it is here where the omissions and contradictions play a very, very significant role. And the provisions of the statutes, especially the CRPC and the Evidence Act, as well as the precedence by various high courts and the Supreme Court has taken care of these issues. Now, today we have Justice Ram Kumar to speak on this particular subject. And to me, Justice Ram Kumar, you love him or hate him. He is one of the most brilliant judges ever the Kerala High Court has ever produced. A very calm, composed and judicious judge who is very sweet, gentle and soft-spoken. And of course, he was the boss darling when he enrolled the bench. Even now, I don't mean that only he was the darling when he enrolled the bench, even now. And with every session, whenever we have it, it is just like a spring where you can see the fresh flowers blooming to decorate our barren brains which are undergoing this COVID-19 pandemic. And to me, he is the Don Bradman of Kerala High Court. So, without any further introduction, right over to you, sir. Thank you. Yeah, Mr. Shyam. Oh, sorry, two questions. No, Mr. Ram Kumar, Justice Ram Kumar will give an introduction. Before that, yes. Last week, we discussed what exactly is a contradiction and what exactly is an omission amounting to contradiction and how the same is brought on record and marked and proved. Today, we will start with an exercise of a practical application of what we learned the other day. I am giving the facts of a hypothetical murder case which Mr. Shyam or Prem will read for you. Sir, may... Yes, who is? A murder case. There are two eyewitnesses to the incident of stabbing. Both these witnesses are neighbors of the deceased victim. The first witness, PW1, is the first informant. We are concerned with the testimony of the second witness, PW2. The 161 statement given to the police officer during investigation of PW2 is to the following effect. I'll just reproduce the 161 statement. The accused and the victim were arch enemies. This witness, PW2, is distantly related to the accused but not keeping good relations with the victim. Distantly related to the victim. Sir, I mean, there is some typographic error. It's accused that side. Oh, I'm sorry. Distantly related to the victim but not keeping good relations with the accused. On the ill-fated day, the accused who is residing two kilometers away from the house of the victim was seen approaching the victim's house at about 6 pm. So one second. At that time, this witness, PW2, was engaged in the house of the victim for cleaning the house. Seeing the accused coming towards his house, the victim took a knife from his kitchen and stepped into his courtyard and attacked the accused with the knife. The accused, while warding off the attack sustained a minor injury on his left arm. He soon overpowered the victim and snatched the knife from him and stabbed the victim on his friend's left chest. The victim, who sustained a deep penetrating injury to his chest, died on the spot. Now, the version regarding the incident in the oral evidence of witness that is PW2 during the trial of the case. When the accused approached the victim's house, there took place an altercation and a push and pull between the accused and the victim in the courtyard of the victim's house. During the scuffle, the accused took out a knife, kept concealed in his waist and stabbed the victim on the friend's left chest. The penetrating injury inflicted by the accused was so deep that the victims succumbed to the injury then and then. Now, I will give some comments about the testimony of this witness. This is a case where presumably due to his ranker towards the accused, the witness PW2 was turning out to be a cunning performer in the witness box. PW2 seemed to deliberately suppress his own 161 statement given to the police. Wherein he had told the police that it was the victim who brought the knife from the kitchen and armed with the said knife, it was the victim who was the aggressor. That was his case before the police. But the witness made a new case in his testimony in court to say that the knife was with the accused, probably because of his ranker with the accused, who had kept it concealed in his waist. Since PW2 was fully implicating the accused, the public prosecutor also for reasons not revealed did not choose to declare the witness hostile. Now, you can read the cross-examination. Question number one in the cross-examination. Is it true that seeing the accused approaching his house, the victim took a knife from his kitchen? It is not true, is the answer given by the witness. Did you tell the police that the victim took a knife from his kitchen? No, I did not. I put it to you that you made such a statement to the police. The relevant portion in 161 statement is read over to the witness. Then the witness would answer, No, I did not say so to the police. If the police have made a record of your statement as read out to you above, what have you got to say? He replies, I don't know. See, this is the compliance of section 145 of the Evidence Act. The witness was confronted with his 161 statement given to the police to say that did you not tell the police that it was the victim who brought the knife from his kitchen? And it was the victim who attacked the accused initially. Was he not the aggressor? The witness denies. Then the latest statement given by the victim by the witness to the police are read over to him and his explanation is thought. He said, I did not say so to the police. Then what have you got to say about that? He says, I don't know. Then comes my question to the viewers. Is this a contradiction or a rumission? First question. They can very well post in the chat box. Is the change over by the victim? Is it a contradiction or a rumission? Ravi would say a rumission. Then Rashi Shah, Dr. Srinivas, Kannan, Magna all say contradiction. Anupama also adds to contradiction. Yes, those of you who have answered that it is a contradiction are right, absolutely right. It is a contradiction because the case of the witness that it was the victim who took the knife from his kitchen was a version given only before the police and not before the court. His case before the court was a totally different case with regard to the production of the weapon. Therefore it is clearly a contradiction. Then how to mark a contradiction? This is the case where this witness has denied having said so before the police. Having given a different statement before the police. Therefore the relevant portion of the contradictory statement occurring in his 161 statement given to the police is read over to the witness and his explanation is elicited. He has already said that I don't know. Then it is marked as exhibit D1. Why I say exhibit D1 is it is a defense. It is elicit. It is a contradiction elicited by the defense. The other day I told you there are cases where more than one investigating officer might have questioned a witness. Supposing this is one case where there are two investigating officers who had during the investigation questioned the witness. So we give a marking as D1 for the first investigating officer. Then for each and every contradiction we will give a marking D1, D1A, D1B, D16, etc. Then supposing the turn of the other investigating officer comes then we will give a marking D2, D2A, D2B. So that when we look at the marking at the exhibit we can say that this is a contradiction elicited from the statement given to the first investigating officer. Then how to mark it? Then it is marked as exhibit D1 subject to proof. Why subject to proof? Why it is marked? Why not mark it totally? Absolutely. Because he is only denying that he did not. He says that I did not tell the police. I did not make such a statement to the police. Therefore his contradictory part is he is confronted with that statement. Then he says no I did not say so. Then who has to say that he didn't say so. The investigating officer who had questioned him. That witness is yet to be examined. Probably he may be examined as the last witness. Which is only when the investigating officer mounts the witness box and tells that when I interrogated this particular witness he gave me a statement like exhibit D1. exhibit D1 is a statement given by him to me. Then only it becomes proof. Therefore in a case where the witness has denied his 161 statement. You can only provisionally mark as an exhibit subject to proof. Proof comes only when the investigating officer comes and has affirmed before the court that he did make such a statement. But supposing the witness says no I did make such a statement before the police. I made such a statement. And why did you say so? What have you got to say? I was afraid of the police. Therefore I gave a statement like that. Then this is a case where contradiction is admitted by the witness himself. In such a case no further proof is necessary. These are all beautifully dealt with in Tassildar Singh's case. Here 1959, Supreme Court 1012. Six level judges. Leading judgment by justice. K. Sumbarao. Yes. The examination continues. Is it correct to say that it was the victim who initially stabbed the accused? No it is not correct. Did you not tell the police it was the victim who initially stabbed the accused? No I did not. I put it to you that you had given such a statement to the police. The defense council reads the relevant portion of the 161 statement to the witness. Then the witness would answer no I did not say so to the police. If the police have made a record of your statement as read out to you above. What have you got to say? I don't know. This is an explanation elicited. Which the defense council or cross-examining council should elicit from the witness because the witness now says in court that I did not make such a statement to the police. So his explanation needs to be elicited as part of the audio ultram part. He should not be condemned and heard because the ultimately the court may discredit him. The court may hold that he is an unreliable witness. Therefore before discrediting him the court is giving him or the defense council is giving him an opportunity to explain. That is also a part of the latter half. The latter wing of section 145 of the evidence act. That is the procedure prescribed. Yes. You deposed before this. Now the question is whether it is a contradiction. He was asked whether it was the victim who initially stabbed the accused. It was the accused who straight away stabbed the victim. He was having the knife with him. But his statement before the police was that it was the victim who initially stabbed the accused and the accused sustained an injury on his left arm. Then there was a scuffle for the knife etc. In the course of which the accused stabbed the victim with the knife after ranging the knife from his hands. This is the case of the defense of the witness. Therefore this is also a contradiction because he had no such case before the court. His case positive version was before the police. Therefore it is a contradiction and his explanation is sought by virtue of the requirement under section 145 of the evidence act. And he says I don't know. Therefore you mark it subject to proof. Supposing he were to admit that contradiction then further proof is not necessary. Investigating officer need not be, this question need not be put to the investigating officer. Yes, now question number 9. You deposed before this court that the accused took out the knife from his own waist. Did you say so before the police when you were questioned during investigation? Now see this is an improvement made by the witness in court. He had no such case before the police. The earlier case statements were different statements given by him to the police. They were contradictions. Now he came out with a new case when examined before court. Instead of saying that it was the victim who initially stabbed the accused. He says no, no, the victim never stabbed. It was the accused who was hiding the weapon in his waist. And he took out the knife and stabbed the victim. Then the cross-examining counsel is asking him, did you have such a case before the police? When you were questioned, yes. He would answer that yes, I had told the police. Your 161 statement does not say that you had made such a statement. Whatever you got to say, it is not correct. I had said so to the police. So this is an improvement or embellishment made by the witness while examined before court. For the first time, he is having such a version. Therefore, is it a contradiction or omission? Such a version is absent in his police statement. In his statement given to the police, such a version is absent. There you call it an omission because it is omitted to be stated to the police. Omission can never be in the version before the court. In fact, the other day I gave you an illustration, a citation of the Supreme Court where they considered it as an omission. Actually, it was not an omission. An omission made before the court is actually a contradiction. But here is an omission made by the witness before the police. And he had no such case when he was questioned by the police. He came out with a new case when he was examined before the court. So he should be asked, did you have such a case when you were questioned by the police? And he says, I did not, I did have. Then the cross-examining council is confronting him with his 161 statement to say that, see you don't appear to have said so before the police. This is how you bring on record an omission. But in the case of an omission, you don't mark an omission. Because it is not there something, it is something which is not there in the police statement. So you cannot mark it. He has already stated before the court that version is already on record. So you only ask him whether did you have such a version before the police? He says, if he says yes I had, then he is actually denying that. So therefore the investigating officer will have to be asked whether when you interrogated this particular witness, did he have such a version which he has stated before the court for the first time? Investigating officer will look into the statement and say, no, he will say no. He did not make such a statement before me. Then it becomes the proof of an omission. Since it is an omission, you can give a marking for an omission. This is the mechanics of proving a contradiction, marking a contradiction, etc. I suppose, yes. Now cross-examination continued. A defense counsel was making a new game. Defense counsel wanted to, see, he wanted to place the knife into the hands of the accused. The witness had said that it was the accused who was having the knife. Victim never had the knife is the version of the witness in court. So the defense counsel wants to place the knife in the hands of the victim initially. Or at least in the custody or possession of the victim. That is why this cross-examination. Did you not tell the police that the victim had kept the knife on the front parapet of his house during the altercation and the accused had picked it up from the public prosecutor objected to the question. But the witness answers, yes, I said to the police. The witness got the cue. The witness understood. He understood that the attempt was to bring the knife within the possession of the victim. Because that was his earlier version. He was confronted with this earlier version. So witness answered positively to the leading question put to him. But was the defense counsel entitled to ask this question? Was the defense counsel entitled to ask this question? Contradiction means the setting up of one statement against another. And not the setting up of a statement against nothing at all. Beautifully stated in Thasildar Singh's case. And the contradiction is between what the witness told the police and what the witness asserted in the witness box. And not between what the witness says he told the police and what he actually told the police. See the distinction. Beautifully stated by Justice K. Soparov in the leading judgment. So contradiction is between what the witness actually told the police officer and recorded by the police officer and what the witness asserted in the witness box. And not between what the witness says he told the police which is not there in the one statement. Because the defense counsel was not justified in asking something which is not there in the one statement to elicit something and then project it as a no mission. Yes. The citation I have already given. Just one more citation. AIR 2004 Supreme Court 5075. AIR 2004 Supreme Court 5075. That is contradiction means the setting up of a statement setting up of a statement against another statement and not the setting up of a statement against nothing at all. You are setting up of a statement against nothing which is absent in the 161 statement that cannot be done. I suppose you got the if you are able to appreciate this answering this problem you get the full of contradiction omission and what cannot be done etc. Now we pass on to the nullifying impact of section 162. Question number one. Yes because there is not a statement made to the station house officer SHO leading to the registration of crime hit by section 162 one of CRPC. Please remember 162 is applicable to a statement made by a person during the course of investigation. Here is a question whether when a first information statement is given to the officer in charge of the police station is it or is it not hit by section 162 CRPC. Ordinarily no. Ordinarily it cannot be done it cannot be hit by section 162 because it is the earliest statement on the strength of which an FIR is registered and investigation is started. Munu versus state of Madhya Pradesh 1976 volume 3 SCC 104 1976 volume 3 SCC 104 but then section 154 under section 154 is to be first recorded in the FIR book this is what our Lalitagumari in constitution page held it has to be first recorded in the FIR book then in the general diary what is the difference between general diary and case diary case diary is one diary maintained under section 172 of the CRPC what is the distinction between general diary and case diary or police diary case diary is the diary maintained under section 172 CRPC and it is the diary which should contain all the statements all the steps taken during investigation including 161 statements of all witnesses the statements of accused etc whereas general diary is a day to day diary daily diary maintained under section 44 of the police act police act 1861 44 the police act insists that every police of every police station should have a day to day diary maintained under section 44 all these aspects have been dealt with in Lalitagumari paragraphs 57 to 72 paragraphs 57 to 72 of Lalitagumari versus government of UP 2014 2 SCC page 1 5 pages 2 SCC page 1 5 pages then there can be a situation where the information received by officer in charge of a police station regarding the commission of a cognisable offense is a cryptic information incomplete information either by through telephone or through somebody then he should make an entry in the general diary and then he should ascertain whether the information is reliable or not he will have to proceed to the place where the occurrence is alleged to have taken place he shall not take with him the diary diary is not expected to take with him he shall proceed to the spot mentioned by the informant and then ascertain and supposing if there is a person who is able to give a complaint regarding the complete information then that can be the first information statement if the person received cryptic information incomplete information received through telephone cannot be treated as an FIR because it is incomplete just a mention only it does not mention about the nature of offense the offender etc therefore you cannot treat it as an FIR but if it is a complete information then he is bound to record it in the general diary FIR book and treat it as an FIR supposing in Sevi Sevi was a state of Tamil Nadu is the decision by Justice Chinna Paradi AR 1981 Supreme Court 1230 AR 1981 Supreme Court 1230 supposing the FIR given by a witness was preceded by a cryptic telephone message in respect of the same crime and recorded in the general diary then the FIR will not be hit by section 162 because it is a cryptic information incomplete information therefore the subsequent FIR will not be hit by section 162 AR 2013 Supreme Court page 807 by Justice Madan B. Lakoo 807 2013 Supreme Court 807 there are other rulings also but if the police machinery had already been set in motion on the basis of a telephonic information which was complete which was not a cryptic information and instead of recording that in the FIR book and in the general diary G.D. the police officer goes to the place of occurrence and takes a complaint from an eyewitness and treats it as an FIR that FIR will be hit by section 162 because he has already received the FIR he has already registered the FIR therefore the subsequent statement obtained by him from this spot from the place of occurrence is actually a statement obtained during investigation that will be hit by section 162 CRPC AR 1993 Supreme Court 2644 2014 Volume 4 ACC 747 case resolution just this then AR 1996 Supreme Court 3244 any number of rulings to say that if a complete information has already been received either through telephone or some other source and he has already recorded that in the FIR book and in the general diary that is the FIR unlike the cryptic information which he earlier received subsequently record the statement from an eyewitness and registers it as an FIR that FIR will be really hit by section 162 CRPC yes we now go to question number 2 sir question number 2 will be taken by Prem but before that sir with your permission the leave has posted one query in the chat it is very interesting may I read it out yes is it correct to say that a part of a previous statement can be made use of by the accused or by the prosecutor with the permission of the court to contradict the witness as provided under section 145 in the Newton's Act if only the statement as a whole has been duly proved and until such time no contradiction is possible then clearly it is on the basis of the phrase if duly proved inserted within the proviso section 162 1 CRPC it is an intelligent question if duly proved is you find the words if duly proved but actually the proof comes only later at the time when you are confronting the witness you are not actually duly duly proving this statement the due proof only comes later but even though the section uses the expression I used to ask this doubt to justice you will but and his lordship used to say interpret that only in that fashion good question yes thank you Prem listen to me a newlywed couple takes a house on rent in the town where the husband is working one night they go for a second show movie when they return to the house they find that the house has been gurgled the wife to her agony finds all her gold ornaments kept in the bedroom covered missing a return complaint is prepared for lodging in the local police station the missing ornaments and their description are enumerated in the complaint which is soon handled with the S.H.U. the couple remains unknown conflicts after reaching home the wife recollects that she omitted to mention finding the missing ornaments the couple rushes to the court and gives an additional list of missing ornaments during trial of the case after marking the acquires that is the first information statement or the first informant the additional list of ornaments is thought to be marked as part of the acquires the long question a newly wed couple after taking a house in the workplace of the husband they go for a second show movie by the time they return from the movie house they find the house burgled then the wife searches for her jewelry in the cupboard she finds all her jewelry missing ornaments missing then the complaint is prepared and all the missing ornaments are enumerated in the complaint they go to the police station lodges a complaint before the S.H.U. S.H.U. registers an FIR then they return home in the dead of the night itself then she makes one further search then she recollects that five more ornaments are missing which they omitted to mention in the Hordian F.I statement so they rush to the police station and give an additional list of five missing ornaments to the police officer during the trial of the case when the FIR was marked this additional list of five ornaments which was additionally given was also sought to be marked then the defense objected no it cannot be marked what is it can it be marked or can it not be marked after all it was it was given within half an hour's delay the answer is in the chat the others would say no Sundar Rai Shankar says also can the complain no that's right no because it is hit by 162 he said not part of the original statement can it not be marked as a part of it can be marked can it not be treated as part of the original statement you are forgetting the fact it is hit by section 162 because when the complaint was lodged an FIR was registered then the investigation started this is subsequent statement of five ornaments were given as during the course of investigation so it is clearly hit by section 162 CRPZ there is a direct rolling of the Supreme Court in AIR 1990 97 Supreme Court 1960 again AIR 1990 97 Supreme Court 2914 yes question number three is not the bar under section 32 surplus one CRPZ applicable to a dying declaration falling under section 32 surplus one of the Indian Evidence Act and recorded by the investigating police officer see a dying declaration is a statement given by a dying person at the verge of death now that is also recorded by in the given case that is also recorded by a police officer though there is a judgment law that it should be recorded by a magistrate CRPZ does not say so dying declaration is recorded by a police officer during the course of investigation so is it not hit by section 162 is the question after registering the FIR he met the dying person investigating officer met the dying person dying person gave a declaration implicating the person who are responsible for his state state of office then it is that is ought to be brought into evidence he is objected as saying that hit by 162 it is a statement recorded by an officer in charge of a police station during the course of investigation is the objection what have you got to say he is putting an answer somebody is putting yes hit by 162 that is Ravi Kaja then Dr. Srinivas know yes 3 4 yes see but for subsection 2 to section 162 it would have been hit by section 162 but a subsection 2 was introduced initially it was not there subsequently introduced therefore a dying declaration is a statement recorded under section 32 1 of the Indian Evidence Act therefore 32 1 statement is specifically recorded from the interdict under section 162 CRPC therefore dying declaration is not hit by section 162 because of the exception exception under section 162 clause 2 1979 4 SCC volume 4 SCC 332 1979 volume 4 SCC 332 again 1970 volume 2 SCC 113 again 2018 Supreme Court 4787 2018 Supreme Court 4787 now what exactly is a dying declaration what is the sanctity of a dying declaration why is it considered to be very sacrosanct is it covered by any Latin maxim yes may not be able to be said in Latin but when you are facing your creator or you are at the final thing no it is a moment in your life exactly nemo moriturus presumitur mentair a person at the verge of death a dying person will not meet the maker with a lie in his mouth with a lie in his mouth that is the that is the sanctity of the dying declaration at least at the verge of death a dying person will not utter a falsehood is that true in the case of some women sarath buram dhichar three judgements exactly when I used to ask this some lady lawyers used to attack me you cannot discriminate like that but I said it is not my word the observation by the fx sport of our country sensitive and sentimental women when frustrated and tired of their life becomes so desperate that they develop a spirit of revenge and sometimes go to the extreme limit of committing suicide with a feeling that the subject who was the root cause of their malady is also destroyed judicial notice taken by the supreme court in sarath burdichar saratha a year 1984 supreme court 1622 a great judge who had a great exposure to the criminal law but as a silver line there is some observation in favor of the women also there is an observation in another case by the supreme court saying that women they have the uncanny lack of identifying their personal belongings women have the uncanny lack of identifying their personal belonging supposing it is a ladies wrist watch favor luba wrist watch by the company might have manufactured lacks of wrist watches same model but that lady will identify no I can identify my own wrist watch this is my wrist watch this this attitude uncanny lack of women has been judicially taken note of by the supreme court in a year a year 1983 supreme court 446 so this is this neutralizes the other observation no I think 83 83 I am only telling the women listeners that don't be disheartened you have got a balanced approach that is what you are trying to say yes don't use that expression please that of course and for that matter the question has been put by she would say a statement recorded as a dying declaration but it so happened that some by miracle the person does not die and survives will it cease to be a what will be the value of that what do you call now that is the difference of Indian law from English law under English law if he is at the at the verge of imminent death it can be treated as a dying declaration not to be standing the fact that under the Indian law he should die under the Indian law he should die then only it becomes a dying declaration wording of section 321 please note section 321 of the evidence act a statement given by a dead person he should die unlike the Indian law so if he survives under the Indian law it can be treated in one case supreme court treated it as a 164 question number 4 because please I think Mr. Rao can take the fourth question yeah sure thank you a charge witness who was given up by the prosecution is examined as a defense witness during his cross examination by the PPP a case diary contradiction is sought to be marked by the PPP the defense counsel objects to it is this objection sustainable interesting question in fact some one viewer the other day had raised a similar question last week initially a prosecution witness a charge witness who was supposed to have been examined by the prosecution but the prosecutor gave up that witness so he had been questioned by the police during investigation such a witness was given up by the prosecutor public prosecutor then he was picked up by the defense and examined as a defense witness then when that witness gave statement the prosecutor wanted to elicit a contradiction so he was sorting to his 161 treatment which had been there when he was a charge witness defense objects to that the question is whether that objection is sustainable or not we have couple of yes coming in and one no also coming in Arvindha Kamath yes the C it all depends on the wording of section 162.1 no statement made by any person the police officer in the course of an investigation under this chapter shall if reduced to writing be signed by the person making it nor shall any such statement or any record thereof whether in a police diary or otherwise or any part of the statement or record be used for any purpose save as here and after provided and what is that here and after provided provided that when any witness is called for the prosecution so they hear the argument of the public prosecutor was that he is not a witness called for the prosecution therefore I can elicit a contradiction wrong the contradiction can be elicited only if he is a prosecution witness he is called for the prosecution therefore the contradiction he can be confronted with his 161 treatment only in the case of a prosecution he was a next prosecution witness charge witness but who was given up by the prosecution you can call him a witness called for the prosecution he is a witness called for the defense therefore proviso has no application therefore the total bar under 162 operates therefore the bar is lifted only the bar is lifted only if the witness is a prosecution witness and we will see that that lifting of the bar itself is for the limited purpose of eliciting a contradiction only not a corroboration we will examine that the citations are 2000 AR1975 AR1975 is operating code 1324 again AR1975 is operating code 1324 1324 again AR AR1968 Supreme code 1390 1390 there are other rulings also I am only giving you the the most important rulings question number 5 but with regard to this particular question yes I would say that there is a decision on this point exactly on this point AR1974 Supreme code 463 I think it was by Justice Big along with Justice Chandrachul they considered that this particular bar of course is there but still even though the bar is of a very sweeping and white nature what normally has to be done is then the accused he has to tell the court that here look here you have to now invoke your power that is always there see that will not overwrite the power of the court under 165 of the evidence act that is the power of the court there are other rulings also of the Supreme code that this bar will not overwrite the power of the court under section 165 of the evidence act in fact the only functionary in the entire gamut of criminal trial who can ask even irrelevant questions is the presiding judge no matter nor the defense counsel can ask an irrelevant question but the presiding judge can ask an irrelevant question relevant or irrelevant see the wording of section 165 of the evidence act therefore that is a power but it is very seldom seldom invoked by courts because then the accused will have to be given an opportunity to cross-examine etc therefore very seldom invoked by courts therefore the bar will not overwrite assailing the detainee passed under the national security act of 1980 which is a central law for preventive detention the advocate appearing for the detainee contents that the detaining authority heard in placing reliance on the statements of the witnesses recorded by the police under section 161 CRTC the advocate relies on in the Pabam Ninguay Devi was the state of Manipur 2010 9 SCC 660 I think it is Pabam Ninguay Pabam Ninguay Devi content that the position that such statements being hit by section 162 CRTC cannot be relied on as substantive evidence is not this argument sound that 2010 volume 9 SCC 618 does not lay down the correct law because see the bar under 162 no statement made by any person to the police office investigation etc be used for any purpose save us hereafter provided at any inquiry or trial in respect of an offense the bar the embargo the interdict under section 162 1 CRTC operates only in respect of an inquiry or trial so this is a preventive detention order is neither an inquiry or trial in respect to the offense you are not proving the offense during the inquiry or trial during the preventive detention therefore that the bar the Supreme Court was in my humble opinion with utmost respect was not right in holding that the bar applies it is not an inquiry or trial in respect to the offense but detaining authority passes an order for detention under the preventive detention law in fact that decision overlooks an earlier decision Aruna kumari versus government of 18 a year 1988 Supreme Court 227 which had laid down correctly the law that this bar will not apply in the case of an order for preventive detention which is neither an inquiry or trial in respect to the offense the Supreme Court has also taken the same view though without giving the real reason that 2015 4KLT 942 the real reason is not stated yes question 6 charge witness given up by the prosecution is examined as a court witness is the embargo under section 162 1 CRPC applicable to him now we have seen an embargo under 162 1 now here is a case where not not examined as a defense witness but as a court witness court is citing him as a witness will or will not the bar under 162 apply Karuppasamy says not applicable bar is not applicable because he is a court witness yes yes I put this question only for that any other answers please put it in the chat box please note that this I told you that for the while answering the earlier question the bar under section 162 1 is a total bar the total interdict you cannot no statement shall be used except in the manner provided in the proviso and proviso is what if he is a prosecution witness he is not a prosecution witness he is a court witness bar operates only if he is a prosecution witness the bar is lifted and that too for the limited purpose of eliciting a contradiction as provided under section 145 of the evidence act you may refer to a year 1968 Supreme Court 1390 it is same earlier ruling only a year 1975 Supreme Court 1324 then they of course this overwrite the power of the court under section 165 if anyone of you wants a citation regarding the power of the over overriding power of the court under section 165 a year 1974 Supreme Court 463 again 2002 criminal law general 2574 2571 that is Kerala Iqor then question number 7 Mr. Rao 7 the statement of a witness given to the police officer under section 161 3 CRPC is attempted to be made use of to contradict the very same witness in a civil case is it permissible the witness before a civil court had been questioned by the police during investigation now that statement is ought to be made use of before a civil court now the question is whether the bar applies please please please remember my earlier words it is a total bar and is lifted only in the case of a prosecution witness that too for eliciting a contradiction and that and that too again in the course of an inquiry or trial in respect to the offense is a civil case an inquiry or trial in respect to the offense so it is not an inquiry or trial in respect to the offense therefore the bar has no application it is a Kerala decision only I do not know whether it is in Supreme Court 1987 2 KLT 64 Supreme Court is there yes here 1981 Supreme Court 1068 what is the civil case yeah yes yes yes 81 Supreme Court 1068 actually the first 34 correct the first decision is from Andhra Pradesh High Court Kathri yes 64 Supreme Court Andhra Pradesh 198 I think I am not sure yes Kathri 4 is there 1981 81 Supreme Court 1068 said yes you are right you are right Kathri 4 part 4 4th Kathri yes question number 8 yes question number 8 is the embargo under section 162 clause 1 of the CRPC operate in the case of a witness for the prosecution in a trial on a protest complaint posted to a closure report or what you call the refer report which is filed by the police yes question is whether see the police conducted an investigation and filed a refer report saying there is a mistake of facts no offense is made out then the first informant has a bar under 162 applies what is it what is the trial of a protest complaint trial of a protest complaint is enquiry or trial in respect of the offense which was under investigation see the wording of 162 at any enquiry or trial in respect of any offense under investigation at the time when the statement was made this particular witness made the statement during the trial at that time he had made that statement it is that trial which is now held on a protest complaint therefore the bar squarely applies the bar will apply yes 1981 criminal law general 563 that is the Kerala eco decision I don't know whether these things will bring good question number 9 sir you can read yes sir under section 173 subclass 2 CRPC for an offense punishable under section 306 CRPC is challenged in a petition filed before the high court under section 482 CRPC is it permissible for the high court to relay on the statements recorded under the section 161 CRPC ignoring the bar under section 162 subclass 1 of CRPC 482 petition a police report is challenged final report is challenged 482 petition now there the statements under 161 and 162 are relied on are being with reference to those statements arguments are addressed is it the high court entitled to or is not the high court not entitled to rely on these statements two persons have answered no and I do not believe that answer you are forgetting the wording of section 162 1 in an enquiry or trial in respect of the offense is a petition under 482 CRPC an enquiry or trial in respect of the offense so as to attract the bar under 162 1 it is not our great supreme court has held in a year 2020 supreme court that is Rajiv Kaurav versus Vaisav year 2020 supreme court 909 because of the bar under section 162 you cannot evaluate the 161 statements I do not think it is correct laying down the correct law in fact that relies on the earlier ruling year 2007 supreme court 2786 that is also in my humble opinion it does not lay down the correct law 482 petition is not a trial or enquiry in respect of the offense that takes place only before the trial court if it even ordinary enquiry it will not apply for example supposing after when a police charges charge sheet is filed and the court is after the filing of the police report what takes place before the court criminal court is the enquiry court considers all those materials produced along with the police report to find out whether there is a case for proceeding further by framing the charge or for discharging the accused it is an enquiry but not in respect to the trial trial is yet to take place so only after the charges are framed and the accused pleads not guilty can the trial start until the starting of trial there is only an enquiry that enquiry is not for the enquiry trial in respect to the offense that happens only after the the charge the starting of trial therefore otherwise a court cannot look into the 161 statements while framing charges while discharging the accused that will be a atrocious statement therefore that kindly that take into consideration similarly supposing we have a problem on that therefore I am not saying that once one enquiry over which 162 bar will not apply we have a problem we have a question on that question number 10 the prosecution witness is declared hostile during chief examination and the public prosecutor with the permission of the court examines him by putting leading questions is it chief examination or cross examination I produce a witness I am the public prosecutor I produce a witness to prove my case my witness turns hostile to me not to the court or to the defense he turns hostile he does not support my case then what is the remedy available to me CK permission of the court under section 154 to put questions which might be put in cross examination by the adverse party I take a permission then put leading questions to him which I am not entitled to ask now the question is whether this is chief examination or cross examination you get the answer in section 137 of the evidence act section 137 of the evidence act says cross examination is always by the adverse party cross examination is always by the adverse party just because you have given the permission a party is given the permission to put to his own witness questions which might be put in cross examination by the adverse party You can't call it cross-examination. You are only asking questions, leading questions which might be put in cross-examination by the doers parking. But that is not cross-examination. It is continuation of the chief examination. Those can say wrong decision by the K.L.I. court. I am not referring to that. We say that it is cross-examination. That was it. Regents. Yes. On change of roster. Question 11. So what is the relevance of the term hostile witness, adverse witness, unfavorable witness or unfilling witness in the context of the Indian evidence act? Yes. Those are all terms of English law. At common law, if a witness exhibited a sort of manifest antipathy by his demeanor, answers and attitude to the cause of the party calling him, such party was not as a general rule permitted to convict him with his previous inconsistent statements, not allowed to impeach the credit of the general evidence of that character. Even in England, the above view is no more valid. The authors of the Indian evidence act advisedly avoided the use of any of those terms so that it is illegal, not consistent with the provisions of the evidence act to call a witness, hostile witness. He is not hostile to the court. He is not hostile to the defence. He may be hostile to the party who calls him. That's all. Don't call him hostile witness. That is an expression which is not used in India under the Indian evidence act. This was specifically taken note of by the Supreme Court in Sathpal, Sathpal versus Delhi administration. In the AER 1976 Supreme Court 294. AER 1976 Supreme Court 294. Question 12. When can the public prosecuted treat his own witness hostile? Technically, he cannot treat his witness hostile. But it has come to stay as a convention in courts in the day-to-day trials when the prosecutor's witness becomes unfriendly to him. He is no more supporting the prosecution. He will request the court, my witness may be treated as hostile. Actually, he is treating his witness as hostile. He is not hostile to the court or to the defence. Therefore, in such a case, he is actually seeking the power of the court under section 154 to put questions which might be put in cross-examination by the adverse party. It all depends on the... The question is when can the prosecutor declare his witness hostile and seek permission under section 154? When he is from the demeanor, either from the demeanor of the witness, temper, attitude, bearing, tone, tenor, tendency, etc. Of his answers, it is discernible that the witness is not supporting the prosecution. Public prosecutor will be justified in asking the court for permission under section 154 of the Odense Act. This is also beautifully stated in paragraph 37 of Sath Paul versus Delhi administration. Same citation. A.R. 1976, Supreme Court 294. Question 13. Can the PP seek permission under section 154 of the Evidence Act during re-examination? For the first time, he is seeking permission during re-examination. Is it permissible? It is the question. Re-examination is examination in chief, cross-examination, then comes re-examination. For the first time, he is seeking permission during re-examination. Question is whether he can do so? He can. He can, because probably the witness might have turned to hostile only during cross-examination. During cross-examination, the witness might have given unfriendly answers. So the only opportunity for the public prosecutor to declare the witness hostile is only during the re-examination. So it can be done. Dahiya Bai. Dahiya Bai, Chagan Bai, Thakkar versus state of Gujarat. A.R. 1964, Supreme Court, 1563. Three judges. Judgment by judges, K.Suparao. Beautifully stated. Question 14. During the trial of a case instituted under police report, when the prosecution witness turns hostile to the prosecution by deviating from his 161 statement, is the PP expected to seek the permission of the court? And if so, under what provisions of law? 154 we have already seen. He is asking the court for permission under section 154 so that he can ask his own witness questions which might be asked by the opposite party during cross-examination. Leading questions he can ask. Otherwise he cannot ask leading questions except on admitted facts or introductory facts. Now yet another permission is there if it is a police witness. He was questioned by the police during investigation. That permission is obtained under the proviso to section 162, one CRPC. That is, provided that when any witness is called for the prosecution in such inquiry or trial whose statement has been reduced into writing as F.O.L.Z., any part of the statement, if duly proved, may be used by the accused and with the permission of the court by the prosecution. So if the prosecutor wants to use the statement of his own witness, he has to seek permission. So two permissions are involved when a prosecution witness turns hostile. One is under section 154, permission to put questions which might be put in cross-examination by the adverse party. Second permission is under the proviso to section 162, CRPC. Then only he can confront the witness with his 161 statements. Two permissions are involved. Actually when a witness turns hostile, what the court should record in their deposition is permission granted under section 154, Evidence Act and the proviso to 162, CRPC. That will be the legalistic way of putting it. But unfortunately some judges say cross and witness declared hostile. Hostile to the court? Is he hostile to the defense? He is not hostile. So witness declared hostile is a bad expression. So P.P. seeks permission or P.P. granted permission under section 154 of the Evidence Act and under the proviso to section 162, CRPC. That will be the legalistic way of putting it on record in the deposition paper. Yes. Mr. Shyam. Question number 15. Yeah. Is it correct to say that an omission in order to be significant must depend upon the fact whether the specific question, the answer to which was omitted was put to the witness. Yes, very well. At times you come across certain omissions because of the inefficiency of the police officer who questioned him during investigation. He might not have asked the relevant question. So you don't get the relevant answers. So that has been beautifully noted by the Supreme Court, traditionally noticed by the Supreme Court. In AIR 2000 Supreme Court, 1833, 1833 where an omission in order to be significant must depend upon whether the specific question, the answer to which was omitted was put to the witness. If a specific question was not put to the witness, you are not entitled to say that here is an omission. A specific question was not put to the witness by the invading officer. That is why you come across an omission. So that's a one way of surmounting an omission. Then in Kerala, we had a great judge by name Patmanavan, Justice S. Patmanavan. His lordship in Francis Joy versus state of Kerala, 1989, 1 KLJ, 585 corresponding to 1989 KLKHC Kerala I Court cases, KHC. Triple 2 held as follows. The statement of a witness under section 161 is recorded by the police officer by examining him orally the statement may be answers to such oral examination. In that oral examination, he may be putting questions which he thinks are relevant according to the information, to his information. The prosecutor or the defense counsel who studies the case critically after getting all the information may try to elicit some answers, some other answer which may not be there in this statement under section 161 CRPC. Such a statement under section 161 need not be an encyclopedia of everything which the witness knows. Witness may be knowing so many things about the occurrence but some relevant questions were not put to him. That is why you find an omission. Any and every omission in it will not become a contradiction for the purpose of discrediting the witness. The question is whether the omission is on a vital aspect which the witness was normally bound to disclose or expected to disclose even without a question by the investigating officer. Beautifully stated. Therefore even without an answer if that was an answer even without a question, even without a proper interrogation he was expected to give that answer. That you call omission provided it is on a material aspect of the investigation. Question 16. During course of an inquiry under section 202 CRPC the magistrate forwards a complaint for investigation by the police. The police officer after conducting the investigation along with signed statements of the witnesses interrogated by him is it legal and can those statements be used for contradiction and corroboration. See the wording of no statement made by any person to a police officer in the course of an investigation under this chapter shall if reduced to writing be signed by the person. No statement shall be signed by the person. Here is a case where the police inquiry under 202 forwarded the private complaint to the police for investigation. That police officer took signed statements from the witnesses attached to his report and when the trial came the signed statements were sought to be marked. Then it was taken exception to by saying that signed statement cannot be looked into. There is a bar under 162 and not only that it can be used only for the purpose of eliciting a contradiction was the objection. Cannot be used for corroboration but the prosecutor was using it for corroboration also. That was the question which had to be decided. What do you say? Nobody is asking okay. See the bar under section 162. I will again read section. No statement 162-1. No statement made by any person to a police officer in the course of an investigation under this chapter. So an investigation by a police officer on a private complaint under 202-1 CRPC is not an investigation under chapter 12 CRPC. It is an investigation under chapter 15 CRPC. Therefore it is not an investigation this bar will apply only in the case of an investigation under chapter 12. Therefore the police officer was fully justified in recording, taking signed statements and that statements of witnesses like any other previous statement can be used for contradiction as well as corroboration. So the bar will not apply. There is a decision by the Kela Iqout, Biju Purushothavan versus state of Kerala 2008 Vol. 3 KLT 85 2008 Vol. 3 KLT 85 Question number 17. In a cheating case where a bank was defrauded, the investigating officer with the view to find out whether the name and address given by the accused. One second. I forgot to mention one aspect also. Now one aspect of the investigation under section 202 202 enquiry the magistrate is following the complaint for the police. There that investigation will not result in a 1732 report. That investigation is only to enable the magistrate whether he should proceed further by issuing process or not. It is only to enable the magistrate to proceed further or not that the investigation is conducted. That investigation will not result in a police report unlike in the case of an investigation under chapter 12 CRPC where it has to end in a 1732 report. That distinction I forgot to mention. Thank you. Sir, I have one small question on this. May I ask it? Yes. Sir, when the police are conducting the investigation or enquiry rather not investigation under 202 can he meet the accused? Can he seek any advice from them? From the police. Not advice. He can question the accused. He can find out the circumstances under which the alleged offence was committed etc. He can. Because this is an enquiry at the post co-organization stage. 202 enquiry is an enquiry at the post co-organization stage. Court has already taken co-organizations on the private complaint by applying and by proceeding under chapter 15. The court has already decided to proceed under chapter 15. In one of the lectures we considered that actual recording of this own statement is not necessary. It is enough if the court has taken a decision to proceed under chapter 15. Then co-organization is taken. Of course the process of co-organization may proceed, may go up to the dismissal of the complaint or the issuance of process under 204. Therefore this is a stage at the post co-organization stage. Court has already taken co-organization. In that stage during the investigation nothing prevents the police officer from questioning the accused also. Thank you sir. Question 17. In a cheating case where a bank was defrauded the investigating officer with a view to find out whether the name and address given by the accused to the bank was fictitious or not sends a registered letter to the address furnished by the accused to the bank. The letter was returned unserved by the police authorities with the endorsement no such address. The investigating officer sends a written requisition to the postman who had attempted service to find out whether the address he was fictitious. The postman sends a reply to the investigating officer stating that there was no such address. When the correspondence between the I.O. and the postman are sought to be marked the defence objects to the same can the objection be sustained? See a bank fraud was committed by asking by opening a fictitious account without any wrong address and when the banker complained or gave information to the police officer he registered an FIR and during the course of investigation in order to find out whether the address given by the accused was fictitious or not the investigating officer sent a registered letter to that address to find out whether that is a real address or not. The postman who attempted service could not find such an address. He returned the postal article saying that no such address. Then to make record of these proceedings, the investigating officer at the time of investigation, he sent a letter he gave a report to the postman to ask him whether the postman was able to serve the registered letter to the addressee. The postman gave a reply in writing saying that no, it is an fictitious addressee and he could not effect service. Therefore, when the letter of the investigating officer to the postman and the reply given by the postman are thought to be marked during trial, defence raises an objection. You can't mark it. He is hit by 162 is the defence. What is your answer? Ravi has said that the object is sustainable and Devdas says it is no. Ravi says it is hit by 162. If that objection cannot be such because it is a communication or statement obtained during the investigation of a case, what is the wording of 162? No statement made during the course of investigation under this chapter shall be used. Therefore, this is a statement obtained during the course of investigation. It is clearly hit by section 162 and Supreme Court while deprecating such practice said that if the bar under 162 will not apply to such communications, then it is easier for the investigating officer to conduct investigation through correspondence. He can conduct investigation through correspondence. Bar will not apply. So any statement can be brought on record. That is what the Supreme Court said in Kali Ram versus state of Himachal Pradesh. AR 1973 Supreme Court AR 1973 Supreme Court AR 1984 Supreme Court AR 1984 Supreme Court AR 1984 Supreme Court Yes, question number 18. He says that he has attended few webinars and he has also read earlier questions with you. Before we go to this question number 18 Here, in this particular question, can the prosecution because even though there is a bar, now can that bar be short circuited by putting the postman in the box? Yes, there primary evidence is being used. That is the way in which this has to be proved. That is the way in which the matter has to be proved. The fact that it is a fictitious addressing, the postal article could not be served, etc. can be proved only by examining the postman. Instead of that, the investigating officer was trying a circumlocutary manner to circumvent the provision of 162. That is what the Supreme Court said. Good question. And there is another rolling by Justice Ram Kumar Hinsul in Rajeevan versus SP 2011 Yes, question 18. Mr. Pandya, unmute. You will have to unmute yourself. Yes, I am muted. Question number 18. Section 133 of Motor Vehicles Act, 1988, reads as follows. The owner of a motor vehicle, the driver or conductor of which is accused of any offense that this act shall on demand of any police officer authorized in this big up by the state government give all information regarding the name and address of and the license held by the driver or conductor which is in his possession or could by reasonable diligence be ascertained by him. In a prosecution for offenses punishable under section 279, 338 IPC and section 183 to 185 of the Motor Vehicles Act, the defense objects to the marking of a written reply given by the owner of the bus regarding the name and other particulars of the driver of the bus. According to the defense, the said reply is hit by section 162 CRPC. The APP argues that the reply was given in obedience to a statutory obligation under 133 of Motor Vehicles Act and is admissible. Is the defense objection sustainable? Does it, is there not a difference in this question from the earlier question? Earlier question the investigating officer was trying to circumvent section 162 through correspondence. But here there is this specific portion under the central act. Namely when the authorized police officer has for information the owner of the vehicle shall be bound to furnish the details. So therefore in compliance of the statutory request the owner has given the reply. So that is the argument of the public prosecutor. I think Kaliram case will come to aid. Kaliram in there there was no statutory obligation for the investigating officer to ask for the report of the postman. Whereas here there is a statutory obligation under the central act. That when an investigating officer makes such a request, the owner of the vehicle shall be bound to give those details. In response to that, in obedience to that, he has given the details. That makes all the difference is the argument of the public prosecutor. Anyway it is hit by section 162 I think. That is because you have attended the earlier. Yes sir. You are right. You are absolutely right. First of all there is no difference at all from the earlier question. Even in the earlier question section 161.2 says every witness shall be bound to answer truly. There is a statutory obligation under section 161.2 CRPC for every witness to answer truly to the questions put to him by the investigating officer. Here also there is only a similar request. That is all. But and moreover 133 of the motor vehicles act does not contain any non-off-genre clause. Does not contain any non-off-genre clause. Not to stunning anything contained in CRPC. The owner shall be bound to give a reply. Then probably the position could have been different. There is no overriding effect given also. Therefore you are absolutely right. The bar under 162.1 will apply. Thank you sir. Thank you. Question 19. On receiving information a sub-inspector of police proceeds to the spot and seizes contraband articles in the presence of witnesses. He thereafter registers a crime by request to section 154 CRPC. During the trial of the case the public prosecutor by placing reliance upon 2119 SCC 581 and 2007 one SCC 630 which held that the registration of a crime is a sign for the commencement of investigation argues that since the statement of the witnesses were recorded even prior to the registration of the crime those statements were not made to the investigating police officer so as to attract the bar under section 162.1 CRPC and consequently those statements can be used for corroboration as well. Is not the above argument sustainable. See there are two rulings of the Supreme Court are relied on by the public prosecutor which categorically say that the registration of a crime is a condition for the commencement of investigation. Here the crime was registered only after the seizure of the contraband article after questioning the witnesses and after taking the accused to the police station along with the seized articles then the FIR was registered. So the prosecutor argues that here this is a case where FIR was registered after the seizure. Therefore there cannot be investigation prior to the registration of an FIR. Therefore these statements recorded by the investigating officer from the seizure witnesses etc are not made during the course of investigation. Therefore 162 bar will not apply is the argument. We have answered it is not hit. It is not hit. Because it happened before the formal registration of the crime. So it is not hit according to him. Yes. Any different answer? Karapasamy. Not hit. Not hit. Okay. So all the three say not hit. Therefore see the ruling of the Supreme Court it has to be understood as ordinarily that those Supreme Court does not use that expression ordinarily. Ordinarily the formal registration of a crime the investigation can proceed only after the formal registration of a crime. That is the ordinary rule. Ordinarily it is only when an investigation is received by the station house officer that he registers an FIR and commences investigation. Ordinarily but there can be extraordinary situations like the one envisaged by section 157 what opposing a police officer, an assistant police officer is proceeding on his police jeep during night patrol duty. He comes across a person hiding near an abandoned bus stop. He getting suspicious he apprehends him and searches him to find that there is contraband narcotic drug. Then actually he is not an empowered officer under the NDPS act. So what should he say? You please wait there with this substance I will fetch the empowered officer and come and arrest you. Will he say that? Or is he expected to say that? As a police officer who has come across the commission of a cognizable offender he is entitled to apprehend the offender, sees that take him to the police station and hand it over to him to the police officer that is what the Supreme Court said in 1994. But therefore there can be situations where a police officer stumbles upon an accused committing a cognizable offence. Police officer is not sitting in the police station. In such cases also there can be a seizure, there can be an investigation therefore there can be an extraordinary situation where there can be an investigation which may precede the formal registration of a crime. Therefore those two decisions of the Supreme Court have to be understood as ordinarily, ordinarily investigation starts only with the formal registration of a crime. But there can be extraordinary situations like the one. In fact the facts of this case are clearly part of the one decision by Justice Katie Thomas Michael Chandrababu v. Sub-Inspector of Police. 1988 Vol. 2 KLT 529 where his lordship relied on State of UP v. Bhagwan the Kishore Joshi a year 1964 Supreme Court 221 to hold that in the absence of a prohibition in the CRPC there can be an investigation before the formal registration of a crime also. Therefore the extraordinary situation requires extraordinary daily. Question number 20 Question 20, in question 19 itself there is another decision by Justice Ramkumar again, Adani Kapilosa 2011 one KLT, I don't remember the page number. Yes that is a case where I pleaded guilty, I pleaded guilty after my demitting office noticing that an observation made by me was being utilized and unduly utilized by various judges for acquitting accused. That is the sanctioning authority has to be examined, that observation subsequently I came across the Supreme Court decision where they said that the authority granting sanction under section 197 CRPC need not be examined that's the Supreme Court because what is it that the court is examining when a sanctioning authority, when the prosecution sanction is sought to be approved under section 197 whether the sanctioning authority had applied his mind to the facts constituting the offense. For that you can always see whether the entire investigation files were before the sanctioning authority. If the sanctioning order itself shows that the investigation files were before him why should he be examined? They were before him so he had his mind while granting sanction. Supposing the order is silent regarding the grant of sanction that the order is silent regarding the placement of the investigation files before him. That is a situation where the prosecution will be entitled to deduce evidence, alley unday called the order to only to prove that the investigation files were in fact placed before him. That's all. If he is able to prove that the investigation files were placed before the sanctioning authority, examine it as the sanctioning authority is unnecessary but one observation by me in that card Anthony Cardoso resulted in unmerited acquittals in various cases. Therefore I had to write an article saying that I myself was wrong in Anthony Cardoso. Thank you for reminding me that. Does the statement of a witness to a police officer holding an inquest attract the embargo under session 162.1 obviously What is it that the police officer doing during inquest? He is holding an inquest. You don't say conducting an inquest conducting a post mortem holding an inquest. Inquest over the dead body was held by the police officer. When he holding an inquest he is doing something as part of the investigation after the formal registrations of a crime. Therefore it is also if a statement is recorded during inquest that is also hit by section 162 CRPZ. Malkiat Singh vs. Tato Punjab 1991 Volume 4 SCC 341 3 judges. Again Harkeerat Singh vs. Tato Punjab AR 1997 Supreme Court 3231 Most of the criminal cases are from Punjab. Most of the crimes in India are from Punjabi. Am I right? What criminal minded like me? Most of the especially murder cases may be reported. Lot of cases under the NDPS also. Yes. Off late under the ED also. Yes. Question 21. What about the statement of a witness recorded in the words of the I.O in the body of the inquest report? Here he is not incorporating the statement of the witness during inquest. He is only mentioning in his own words what a witness told him during the time of inquest. It is also hit by 162 whether he is incorporating that statement or not. Periyasami vs. Tammul Nadu 1996 Volume 6 SCC page 457 Question 22. I will ask Parupaswamy only to unmute himself. 22. Or he will read the 23rd and I will read the 22. What about the signed statement of witnesses annexed to the inquest report? Same embargo annexed to the inquest report. Signed statements of witnesses recorded by him at the time of inquest. Clearly hit by 162. 1976 Volume 4 SCC 272 1975 Volume 4 SCC 272 Datar Singh vs. Tato Panjab again from Panjab. I think it is 74 decision. 1975 may be A.A. but SCC 75 4 SCC 272. Question 23. He is investigating police officer who had not seen the occurrence has marked the exact part of the crime in the scene magazine. Is it hit by section 162 1 CRPC? After the offence was reported to him, he swung into action went to the place of occurrence. He inspected the scene of occurrence, seized certain materials from this spot and then prepared the scene master. In the scene master, he has beautifully explained this exact scene of crime. It is argued during the trial that the scene of crime as detailed in the scene master is hit by 162 which he personally saw. He had personally inspected. In Madras I quote that magazine is relevant under section 7 of the evidence that is what he says. When a investigating police officer proceeds to the place of occurrence and inspects this place of occurrence, that is why I carefully use the word who has not seen the occurrence. He was hitting in the police station. Somebody informed him. He sprang into action, went to the place and he asked where is the scene of occurrence? Any eyewitness? One eyewitness came there. Where exactly is the place of occurrence? Place of crime, scene of crime. The eyewitness showed him the place of scene of crime. This is the exact spot where the occurrence took place. He describes it in the scene master. What is the source of his information regarding the scene of crime? From the witness. Therefore that part of the scene of crime or scene master will be hit by section 162. Even though there are certain other parts of the scene master which are not hit by 162 because he might have seized bloodstained dagger. He might have seized bloodstained earth which are all actually perceived by him with his own eyes. Therefore those parts of the scene master will not be hit by section 162's ERPC. But certain aspects which he came to know only through witnesses. That part will be hit by section 162's ERPC. I doubt whether the... Whether is it relevant under section 7 of evidence? It cannot be looked into. Then he will have to prove. Anyway there is a beautiful judgment by Justice K. Hema of the Kerala High Court. See AR 2003 Supreme Court 4233 judges. AR 2003 Supreme Court 4233. There are any number of rulings. Then in Mohanen. Mohanen versus state of Kerala by Justice K. Hema. It was held that information collected by the inviolating officer from the witnesses with regard to the scene of offense. And incorporated in the scene master is inadmissible by virtue of section 162's ERPC. And the deposition of the investigating officer being hit by hearsay evidence cannot be looked into. Mohanen versus state of Kerala 2011 4KLT page final. Of course following the Supreme Court only. Most of the 304A cases that Magasar plays a vital role and it has been consistent. Actually in very many murder cases also a police officer will ask the village officer to prepare a scene plan which are afferent to the scene mahasar prepared by the police officer. Actually is it not hit by 162? He has to independently go and visit the place in the presence of eyewitnesses and prepare the scene plan take measurements and notice all the relevant objects there. Instead of that what is happening is police officer will make a request requisition to the village officer and village officer along with the police and along with the scene mahasar prepared by the investigating officer will prepare a scene plan in accordance with the scene mahasar. Technically it is hit by 162. But very often it is not raised in many trials. Hereafter with your answers I will argue. Then there is one decision of the Supreme Court, a constitutional bench of Supreme Court where a sketch map prepared by a draftsman ascertaining the scene of crime from the eyewitnesses and taking measurements etc that is the way it should be prepared ascertaining from the witness eyewitnesses and taking measurements etc that is not hit by section 162 CRPC. Shantha Singh v. state of Punjab, air 1956 Supreme Court 520, 5 judges, constitutional bench. But then we have a Kerala criminal rules of practice where in cases where the plan of scene of offense is not filed along with the charges. The rule says the court shall ask the police officer to prepare a plan which will be hit by 162. Then we pass on to the next question. Question number 24. 24, one Balu who had witnessed the abdication of a boy by the accused was murdered by the accused. During the trial of the murder case of Balu, the statement of Balu recorded in the 6th 161 CRPC in the abdication case is sought to be proved by the prosecution. The defense objects to the ethnicity of Balu statement. The public prosecutor argues that the statement of Balu will be called under section 32 plus 1 of the evidence act and is not hit by section 162 plus 1 CRPC since it is said under section 162 plus 2 of the prosecution. Is the defense objection sustainable? Balu had seen the accused persons abducting a small boy. The accused came to know of this. They murdered Balu. His statement of Balu, that was only subsequently. In the abdication case the statement of Balu was recorded. Subsequently Balu was murdered. Subsequently Balu was murdered. In the murder case of Balu, the statement was sought to be relied on by the prosecutor. The statement of Balu in the abdication case to say that it will fall under section 32 1, dying declaration of Balu. And therefore since it is a dying declaration falling under section 32 1, the prosecutor argues that the bar under section 162 1 will not apply which is specifically saved under 162 2 CRPC. That is the position. Statement is relevant under section 32. The objection is sustainable. If the statement falls under section 32 1 of the evidence act then the bar under section 162 1 will not apply. The question is whether it will fall under section 32 1 in the case of the statement of Balu recorded in the abdication case not in the murder case. If Balu died then yes. Yes the statement of Balu was made in the abdication case and it does not relate to the cause of the death of Balu. Or any of the circumstances of the transaction which resulted in the death of Balu. And the statement is not admissible under in the murder case of Balu. A statement merely suggesting the motive. It may probably be the motive for causing the death of Balu. That is not admissible. Supreme Court relied on Akkala Narayana Swami versus Emperor in 1939 Preview Council 47 in Vinayati Nagar which is the state of Rajasthan. It is a 2008 Supreme Court 1558. Of course the bar under section 162 will not apply because the statement is not recorded in this case. But it should fall under section 32 1. Yes question number 25. Yes sir. Is the signed statement taken by an officer of the railway protection force during an inquiry under section 8 subsection 1 of the railway property unlawful position act 1966 hit by section 162 of the CRPC. It may not be because first of all he is not a police officer. Really RPF person is not a police officer though he is wearing khaki uniform. Then secondly there is some interruption. Sir I think I will just check it out. Mr Pandian kindly check I think. Secondly this is not an investigation. First of all he is not a police officer. It is an investigation by a police officer. So as to attract the bar under section 162 1 CRPC AER 1981 Supreme Court 635. 1981 Supreme Court 635. But this may have to be reexamined in the light of the recent trend. Offencing case. Yes. And not only that they are way back in that justice case there is a beautiful descent by justice case one day that will be the law. Yes question 26. Yes section 8 1 of this railway property unlawful position act. Yes. It is only an inquiry. But then there are complaint that they are also taking statements under a divorce clearly falling under section 24. Section 8 was directly considered by the Supreme Court in 1974 Durga Prasad's case. Yes. And other there is another Supreme Court. All the constitutions when the rulings rely on Barkhatra the majority view of Barkhatra the minority view of justice is ignored. One day it will assume importance. Yes. In a correction case after the tainted currency notes were accepted by the accused public servant from the complainant the police officer who laid the trap entered the office room of the accused and asked him as to work he had kept the tainted money. The accused then took out the money from the second drawer on the right hand side of his table saying that it was the that he kept the money. It's not the allowance statement hit by section 116 to CRPC and section 25 of the evidence act. Very often the police conducted trap after registering an FIR. Because the complainant will meet them meet the police will say that this particular public servant demanded drive from me. So section 7 is registered an offense under section old section 7 of the PC act is registered and then they arrange a trap then the offense is completed with the when the tainted money is received by the accused. So after the tainted money is received in a particular trap case the police officer the the trapping officer entered the public servant's room and asked him where have you kept the tainted money he pointed out the second drawer drawer in his shelf from where the trap tainted money has been recovered. Now this question was asked because in 1776 Supreme Court 449 Maha Singh versus state Delhi administration. Supreme Court held that any statement made by the accused during the trap proceedings made to the trapping trapping officer will be hit by section 162 CRPC. It was in the light of this ruling that this this question was put. Even Tophan Singh case will have a play here also. Forget about Tophan Singh. This is a clear case of police. Police officer conducting the trap. Yes. Arranging the trap. You don't have to invoke Tophan Singh. Then the question is whether the state the contact to the accused in pointing out the tainted money is hit by 162 because it was a contact in response to the question by the trapping officer. I don't think it is hit by 162 because it resulted in a recovery falling under section 27. Does it not amount to recovery under section 27? Question asked was where have you kept the tainted money? Not money. The question asked was tainted money. Saying that it is a tainted money he pointed out the money. He showed the place of concealment. It will actually fall under 27. I only wanted to bring to your notice that every statement given by the public servant in a trap case to the trapping officer may not be hit by section 162 because if a statement falling under section 27 of the evidence act is specifically excluded under subsection 22 section 162 as in the case of a dying declaration. But there are decisions wherein 59 Supreme Court 707 again 1968 Supreme Court 1292 all saying that trap is part of investigation. Holding a trap is part of investigation. But if you closely follow those decisions you will find that it is all after registering the crime. There is one beautiful decision by 3 judge Bench speaking through Justice V. R. Krishna here. If the trap was laid after the formal registration of the F.I.R. then statement by the accused will be hit by section 162 not otherwise. I have advised a prosecutor in the vigilance court to advise his police officers not to register F.I.R. before laying the trap. One thing I want to tell you is that in the case of a dead person laying the trap once an F.I.R. is registered it will be difficult. Let them lay the trap and let the offense be complete then register the F.I.R. But now if we have a close look at the Lalitha Kumari Parahamalan 20 that saves the F.I.R. that saves F.I.R. they have to necessarily register F.I.R. to conduct preliminary enquiry. After preliminary enquiry. Then there also is a part of investigation. No preliminary enquiry has held in 64 Supreme Court. 64 Supreme Court is not part of investigation. In fact, actually those records did not come to the court even. But unfortunately what is happening in our vigilance courts and CBI courts is that the judge will pass an order when a private complaint is received. He will forward it to the vigilance police or CBI police under 153 with a direction to conduct a preliminary enquiry and report. What is this authority to ask for a report? Police officer will conduct a preliminary enquiry if the going by Lalitha Kumari where cognizant's offense is disclosed he can register an F.I.R. He need not report back because this is why because the judge some judges are holding this matter with them so that if the officer sends a report or finds a report that no crime of his offense is not made out. There are instances where the special court itself directs the police officer to conduct further preliminary enquiry. Further preliminary enquiry. Why? Why should it be? Supposing the report is not correct it can be challenged by the first informant in appropriate proceedings. Why the special judge takes upon himself the part of the prosecution? I have my personal objection to that. I think that 59 Supreme Court expires again by the judges to what is 59 Supreme Court you cited 59 Supreme Court 707 Mubarakali It was registered after the the trap was laid after the registering the F.I.R. So hit by 162 unless it results in a recovery falling under section 27. I only wanted to make this rider that whatever statement given to the trapping officer it will not be hit by 162. A statement which results in a recovery falling under section 27 will not be hit by 162 CRPC which is specifically excluded under 162 clause 2. Just the same of by the Kerala High Court. Yes. Pre-trap mercies and post-trap mercies they do not amount to statements that is how this bar is got surrounded. The bar is got surrounded by saying that these pre-trap mercies and post-trap mercies are not statements made to the investigating officer. A very ingenious way of getting over the bar Yes. Last question. The division bench of a high court made the following observations in the course of disposing of a criminal appeal in a murder case. It is settled law that even a statement recorded by the magistrate in terms of section 164 sub clause 5 can also be used for the purpose of contradiction. The statement recorded in the section 164. Question 27. May I read? Yes. During the inquiry under section 452 CRPC for the final disposal of the property in a theft case the magistrate relies on the case theory statements of the Goldsmith, the accused etc. The defense council objects to the action of the magistrate by contending that those statements are hit by section 162 CRPC which covers even inquiry. Was the magistrate justified in relying upon the case theory statements? During the inquiry or trial section says during the statements recorded and they cannot be used during the inquiry or trial. So the defense lawyer says this is an inquiry 452 is an inquiry. Inquiry or trial is the wording of the section. Therefore, those statements cannot be looked into in the bar under section 162. The magistrate is justified in relying upon the case theory because inquiry has not started yet. What do you mean? Read the section 452. It is an inquiry for final disposal of the property. It is an inquiry. In fact, the original inquiry started long after the submission of the charge sheet. Then trial happened. After the trial court is interested in seeing the property is returned to the proper person who is entitled to possession. If the situation covers under section 451, 457. 451, 457, 452. All are inquiries. The magistrate cannot pass an order. But here the beautiful wording of section 162 again. Inquiry or trial in respect of the offense. In respect of the offense. This is not an inquiry or trial. This is an inquiry for the final disposal of the property. Not in respect of the offense. That makes all the difference. The beautifully stated by judges, Katie Thomas in the Kerala decision, Krishna Pillai versus public prosecutor 1987 to KLT 366. 1987 volume 2 KLT 366. Now we come to the last question. I think even before that we have Arjun and Chettiar's case again by Justice Papna. 85 KLT. I remember the page from book. I make a final question. I jump the gun too fast. The division bench of the High Court made a following observation in the court of disposing of a criminal appeal in a murder case. It is said a law that even a statement recorded by the magistrate in terms of section 164 sub plus 5 can only be used for the purpose of contradiction. The statement recorded in the section 164 5 cannot have any validity as such and cannot be treated as evidence before a court. It has the same characteristics of a statement recorded by a police under section 161 and can be utilized only for the purpose as provided in the proviso to section 162 read with section 145 of the Indian Evidence Act. Therefore, no prejudice would be caused to the accused even if there is any irregularity in the recording of the statement in section 164 by the level magistrate. In the case on hand, the argument is with reference to a statement given by PW2 as child witness to the magistrate in section 164 of CRPC. Is there any fantasy in the above statement of law? It does not reflect the true legal position. The following are the informities in that observation. The observation that is statement recorded under section 164 5. CRPC is analogous to a statement recorded by the police under section 161 CRPC and can be used only for the purpose of contradiction as provided under the proviso to section 162 1. CRPC is an erroneous statement of law. 164 statement cannot be equated with section 161 CRPC statement under 161. 161 is a statement recorded by a police officer during the course of investigation. It cannot be looked into at all except for eliciting a contradiction that too in the case of a prosecution witness and that too for the limited purpose of eliciting a contradiction. Such statement under section 164 can be used not only for contradicting the maker under section 145 of the evidence act but also for proving a corroboration under section 157 of the evidence act. It is open to the that statement can be used not only for contradiction but also for corroboration as any other statement or as in the case of a 154 statement. It can be equated like a 154 statement which can be used for contradiction as well as corroboration. That is another mistake. The third mistake is the proviso to section 162 1 CRPC also cannot have any application to a 164 statement because proviso to section 162 1 applies only in the case of a person who was interrogated by a police officer during the course of an investigation. 161 for example that has nothing to do with which is recorded by magistrate. Similarly the further observation in the extracted portion of the reported verdict that a statement recorded under section 164 5 cannot have any validity as such and cannot be treated as evidence before court. Also may not be now when the observation was made cannot be right because as per clause B of the statement recorded under clause A of subsection 5A of section 164 CRPC it is treated as evidence at least in those cases covered by clause subsection 5A of 164 the statement of that witness is treated as examination in chief as directed by the Supreme Court in Shivarnath case therefore it is to be treated as examination in chief dispensing with the further requirement of the prosecutor again recording the chief examination. So it cannot be said that it is not evidence. It is evidence at least in certain cases all those mistakes were committed. In fact I will only say that the division branch is in the good company of the Supreme Court in one case where the Supreme Court somewhere in 2010 held that the statement of the given to the magistrate under section 164 or TIP is hit by section 162 CRPC there is a decision by Supreme Court also which is also the division branch is in the good company of Supreme Court in that decision but wrong according to me wrong and the very same author of the same verdict held in Aya 2011 Supreme Court in 1863 in paragraph 8.5 held that the mother of the accused who had given a statement to the police is preferable to the statement of the mother in court the statement given by the mother to the police was preferred in preference to the statement of the mother in given in court by the very same author of the Supreme Court. With that I think we come to the close of today's article. The floor is open for questions. There is only one question and Mr. Vikas I have one question. Sir good evening. My question is with regard to trial under section 18 and 19 under chapter 18 it is trial by court of session and chapter 19 is a trial of a warranted case by a magistrate when PP is to open a case under chapter 18 then why not PP under chapter 19. Number one and what is the basic difference between chapter 18 and 19 because most of the provisions are which are... That is a question to be asked to the legislature. Why ask me because legislature has chosen to hold that the case before a court of session shall be opened by the public prosecutor and he will have to explain by what evidence he proposes to examine to prove his case he will have to say and at that stage mind you prosecutor can even say that I will not be examining CW 4 Charity witness number 4 because he has been won over by the defense therefore I will not be examining him. He can say at that stage. But sir I have seen... Even before the magistrate the burden on the prosecutor is the same prove beyond reasonable doubt. But it is not provided anywhere in chapter 19 that PP is to open the case PP is to claim it is not provided anywhere in chapter 19. Please ask the legislature. No sir I only wanted to clarify in case it is possible to clarify. I only wanted to clarify if it is possible. Yes. And sir what is the basic difference between chapter 18 and 19? Most of the provisions are common. Most of the provisions are common but in chapter 18 there is one stage at 232 states section 232 states which is not there in warrant trial. In warrant trial you don't find a 232 stage because 232 is a case where the prosecution after reducing evidence it is a case of no evidence supposing all the witnesses turn hostile then the court is exempted from proceeding under the next provisions because probably the legislature wanted to put an end to the ordeal of the accused at that stage itself by giving the sessions judge an order to record an acquittal, a power to record an order to pass an order of acquittal under section 232 therefore it is a case of no evidence the sessions judge need not proceed further call upon the accused to reduce evidence etc and then hear both sides the session judge can terminate the proceeding prematurely at that stage only rider is that he has to give reasons in support of the acquittal 232 that is not there in warrant trial often and one aspect also to be noted see very often after 313 examination the stark question asked to the accused is have you got any defensive evidence? What have you got to say anything have you got anything else to say? He will say nothing else have you got any defensive evidence? He will say I have no defensive evidence then 232 stage I am referring to session trial chapter 18 232 stage the sessions judge finds that there is some slander evidence against the accused he cannot pass an order of acquittal he will have to pass over to the next stage 233 under section 233 the sessions judge will have to call upon the accused to enter on his defense at that stage the accused can very well say or can take a different view take a diametrically opposite view and say that I have got defensive evidence then the sessions judge will not be heard to say no you only said that you have no defensive evidence when you were examined under section 313 because that was not the stage at which he should have been asked 313 is only for giving him an opportunity to explain the incriminating evidence against him thereafter the 232 stage if there is no incriminating evidence court will pass an order of acquittal 232 if there is some evidence court will not pass an order of acquittal court will pass on to the 233 stage and 233 stage is the stage at which he will call upon the accused to enter on his defense at that stage alone the defense the court can call upon the accused to ask whether he has got the evidence or not if at the earlier stage he had already told the court that I have no evidence notwithstanding that answer he can say that I have got evidence court cannot tell him no no you are recruited from saying so because you had already given me that you have already told me that you have no evidence no court cannot say that these are the basic difference one more question please one more question chapter 15 is applicable only in case of private complaint or also is applicable in case of police or goods private complaint private complaint only private complaint not in case of the police or goods no no chapter 15 because a magistrate receiving a private complaint can be said to have taken cognizance probably you did not attend my earlier lectures taking cognizance of an opinion that was a subject matter of an earlier lecture here in this platform I have attended that answer when the magistrate after attended almost all your lectures basically you are a private complaint thank you very much I will take two last questions can a complainant change his dates in a statement recorded in section 161 and his complaint after the registration of FIR by stating therein that the dates mentioned earlier was wrongly written due to clerical mistakes occurred but on actual evidence was let in several cases and complainant comes to know about the actual dates nothing wrong dates mentioned in the complaint are wrong after all there will be other evidence unimpeachable evidence to show that the occurrence took place on a particular day not on the day mentioned in the complaint facts on which court will not disallow questions second is also quite interwoven can a complainant give two statements under section 161 CRPC with only change of date in the second statement as date was changed after the evidence first statement in the section recorded after 4 months and of the FIR and second statement recorded after 10 months nothing proven seem from giving any number of 161 statements to the police the question is those statements cannot be looked into except of eliciting a contradiction and that contradiction also cannot be looked into except for discrediting him so we will wind up thank you sir as Mr. Prem said that whenever you come you give a as he said like a spring the fresh whiff of air comes the fresh ideas come and you take entire things in a different way and I am quite sure that those who are practicing on the trial court, the muscle side they will understand as to how the things can be taken forward and since on Friday we will be having a session on sanctions under the criminal law by Mr. P. S. Raja Kupal a senior advocate from Karnataka do join us at 6 p.m. tomorrow and this is Ram Kuma we are thankful on behalf of beyond law CLC all those participants who have been watching us and needless to say Mr. Prem Raj Menon, Shyam, Mr. Rao Mr. Pandian, Mr. Kamath who helped us to take these questions and for sir to take out all these questions framing them then deciding it and taking it forward for all the participants that's an amazing effort we are all indebted to you thank you thank you Mr. Prem Raj, thank you Mr. K. Vijay Rao and thank you all participants in giving me a patient hearing, thank you. Shyam is left out Shyam of course he has dropped out I will thank him separately In fact he was travelling, I called up in the morning he said that he is travelling he will try to make it till 4 o'clock and he made it but I think after he was not feeling well He has messaged me to offer his apologies to Mr. Jan Kuma but you can message him that we have thanked him that he helped us