Whether A “Prosecution Witness” Can Be Cross-Examined By Resort To Both The Limbs Of Section 145 Evidence Act (S.148 BSA) With Regard To His161 (3) Cr.P.C. (S.180 (3) Of BNSS) Statement

In order to fully grapple with the issue, it may be necessary to closely examine the wordings of the relevant portions of Section 162 (1) Cr.P.C. and its proviso corresponding to Section 181 (1) of Bharatiya Nagrik Suraksha Sanhita, 2023 (“BNSS” for short) and its proviso. The scope and amplitude of Section 145 of the Evidence Act corresponding to Section 148 of the Bharatiya Saksya Adhinayam, 2023 (“BSA” for short) also will have to be looked into.

2. Section 145 of the Indian Evidence Act, 1872 and the corresponding Section 148 of BSA read as follows:

3. The impact of Section 162 (1) of the 1898 Code (S.162 (1) of the 1973 Cr.P.C.) and its proviso on Section 145 of the Evidence Act in relation to the “previous statement in writing” of a prosecution witness recorded by an investigating Police Officer under Section 161 of the 1898 Code (S.161 (3) of the 1973 Cr.P.C.) was considered in the celebrated verdict of a Constitutional Bench of the Supreme Court of India in Tahsildar Singh v. State of U.P. AIR 1959 SC 1012 = 1959 Cri.L.J. 1231 – 6 Judges – B. P. Sinha, S. J. mam, J. L. Kapur, A. K. Sarkar, K. Subba Rao, M. Hidayatullah – JJ. All the 6 Judges were unanimous in holding that –

• there is a “total ban” under Section 162 (1) Cr.P.C. against the user of the “statement” of a witness recorded by an investigating police officer under Section 161 (3) Cr.P.C., except in the case of a “dying declaration” under Section 32 (1) of the Evidence Act and except in the case of a “statement” resulting in the recovery of an object pursuant to the “disclosure statement” of an accused falling under Section 27 of the Evidence Act.
• as per the proviso to Section 162 (1) Cr.P.C. the said ban is partially lifted only in the case of a “prosecution witness” and that too for contradicting such witness in the manner provided by Section 145 of the Evidence Act.

4. The majority view of 4 Judges (B.P.Sinha, J. L. Kapur, A.K. Sarkar K.Subba Rao) speaking through Justice K. Subba Rao was that since the said “statement” under Section 161 (3) Cr.P.C. can be looked into only for “contradicting” a prosecution witness in view of the proviso to Section 162 (1) Cr.P.C., it is the latter limb of Section 145 of the Evidence Act alone which can be made use of by the cross-examining counsel. The minority view by Justice Hidayatullah (for himself and also on behalf of Justice Syed Jaffer Imam), was that the whole of Section 145 of the Evidence Act can be made use of by the cross-examining counsel.

5. All these years I was advocating the binding majority view that a “prosecution witness” whose statement had been recorded under Section 161 (3) Cr.P.C. can be cross-examined only for proving a “contradiction” and not for any other purpose. But, after a re-look into the wording of the proviso to Section 162 (1) Cr.P.C. and a closer scrutiny of both the majority and minority views of the Judges in Tahsildar Singh's case, I am inclined to accept the minority view as laying down the correct interpretation of the said proviso.

The majority view in Tahsildar Singh's case

6. The majority of four Judges speaking through Justice K. Subba Rao in Tahsildar Singh's Case (Supra – AIR 1959 SC 1012) held that even though both limbs of Section 145 of the Evidence Act deal with cross-examination, the first limb of Section 145 deals with “cross-examination other than by way of contradiction” and the second limb deals with “cross-examination by way of contradiction only”. The majority further held that with regard to the “statement” of a “prosecution witness” under Section 161 (3) Cr.P.C., the proviso to Section 162 (1) Cr.P.C. allows cross-examination only to “contradict” the said witness and for that purpose the latter limb of Section 145 of the Evidence Act alone could be resorted to. In this behalf the majority, inter alia, observed as follows:-

“It would be doing violence to the language of the proviso (to S.162 (1) Cr.P.C.) if the said statement be allowed to be used for the purpose of cross examining a witness within the meaning of the first part of S.145 of the Evidence Act. Nor are we impressed by the argument that it would not be possible to invoke the second part of S.145 of the Evidence Act without putting relevant questions under the first part thereof. The difficulty is more imaginary than real.” (Vide para 13)

Again the majority observed as follows:-

“The Section (S.162 Cr.P.C.) was, therefore, conceived in an attempt to find a happy 'via media', namely, while it enacts an absolute bar against the statement made before a police officer being used for any purpose whatsoever, it enables the accused to rely upon it for a limited purpose of contradicting a witness in the manner provided by S.145 of the Evidence Act by drawing his attention to parts of the statement intended for contradiction. It cannot be used for corroboration of a prosecution or a defence witness or even a Court witness. Nor can it be used for contradicting a defence or a Court witness. Shortly stated, there is a general bar against its use subject to a limited exception in the interest of the accused, and the exception cannot obviously be used to cross the bar.” (Vide para 17)

The minority view in Tahsildar Singh's case

7. The minority Judges on the other hand, speaking through Justice Hidayatullah held that the right of cross examination of the cross-examining counsel available under Section 145 of the Evidence Act could not be restricted to the latter limb of that Section alone and that the first limb of Section 145 could also be made use of for cross-examining the prosecution witness. The minority observed as follows:-

“The section (S.145 of the Evidence Act) analysed gives the following result :

(1) Witnesses can be cross examined as to previous statements in writing or reduced into writing;

(2) These writings need not be shown to the witnesses or proved beforehand;

(3) But if the intention is to contradict them by the writings,

(a) their attention must be drawn to those parts which are to be used for contradiction;

(b) This should be done before proving the writings.

Our learned brother, Subba Rao, J. restricts the use by the accused of the previous statements to the mechanism of contradiction as detailed in (3) above, but says that the accused has no right to proceed under (1) and (2). He deduces this from the words of S.162 of the Code of Criminal Procedure, where it is provided :

"in order that any part of such statement, if duly proved, may be used to contradict such witness in the manner provided by S.145 of the Indian Evidence Act 1872."

The fact that the accused can use the previous statement for the purpose of contradicting, shows that the previous statement cannot be used for corroborating the witness. Also there must be some basis for contradicting. This may arise, because of there being a contrary statement, irreconcilable statement or even material omissions. The accused can establish a contradiction by cross examining the witness but only so as to bring out a contradiction and no more. We regret we cannot agree (and we say this with profound respect) that the accused is not entitled to cross examine but only to contradict. In our opinion, the reference to S.145 of the Indian Evidence Act brings in the whole of the manner and machinery of S.145 and not merely the second part. In this process, of course, the accused cannot go beyond S.162 or ignore what the section prohibits but cross examination to establish a contradiction between one statement and another is certainly permissible.”

8. After a careful evaluation of the relevant provisions and the majority and minority views in Tahsildar Singh's case, I am presently inclined to hold that the minority view lays down the correct interpretation regarding the scope of the impact of the proviso to Section 162 (1) Cr.P.C. on Section 145 of the Evidence Act. The following are my reasons –

1. With utmost respect, the statement of the majority in para 13 of Tahsildar Singh (Supra – AIR 1959 SC 1012) that the first part of Section 145 of the Evidence Act deals with “cross-examination other than by way of contradiction” and the second part with “cross-examination by way of contradiction only”, itself may be open to doubt. In my humble view it was impermissible to treat the first and second limbs of Section 145 of the Evidence Act as water-tight compartments. According to my respectful submission, both parts of Section 145 deal with cross-examination of a witness as to all his previous statements in writing including a statement recorded by the investigating police officer under Section 161 (3) Cr.P.C. and if it is intended to elicit a “contradiction” in the said previous statement, the same can be done only by following the procedure prescribed under the second part of Section 145 if the Evidence Act. This procedure in the second part of Section 145 of the Evidence Act for proving a “contradiction” is the only procedure applicable to “all previous statements in writing” including the one under Section 161 (3) Cr.P.C.
2. It is through cross-examination of the witness by resort to the first part of Section 145 of the Evidence Act that the previous-statement in writing given by the witness is first brought on record. Such previous statement can include –
3. Statements in writing given by the witness to a police officer and recorded under Section 161 (3) Cr.P.C. during the course of investigation of the case under inquiry or trial.
4. Statements in writing given to a police-officer otherwise than in the course of investigation of the case under inquiry or trial.
5. Statements in writing given to non-police officers such as statements by the witness in a letter sent by him or in a diary maintained by him.

Out of the aforesaid categories of previous statements in writing, Category (i) alone is subject to the qualified use mentioned under the proviso to Section 162 (1) Cr.P.C. In the case of the above category of statements, the witness cannot be “corroborated” with the aid of Section 157 of the Evidence Act. The proviso to Section 162 (1) Cr.P.C. restricts the cross-examination of the witness and permits only to “contradict” him with regard to his previous statement given in writing to the investigating police officer under Section 161 (3) Cr.P.C. It is pertinent to note that both before and after a contradiction is elicited from the prosecution witness, the activity to which the witness is subjected during trial is nothing but “cross-examination”. But, all the “statements” falling under Categories (ii) and (iii) above are not subject to the above restriction under the proviso to Section 162 (1) Cr.P.C. Consequently, the prosecution witness can be both corroborated as well as contradicted with reference to those statements.

1. The cross-examination of a prosecution witness is not merely to elicit a contradiction in his previous statement in writing. If during the course of cross-examination the witness is to be confronted with his “previous contradictory statements in writing”, then it has to be done by recourse to the first part of Section 145 which permits cross-examination without such previous writing being shown to him or being proved. In case the witness is to be contradicted by such previous statement in writing then the procedure laid down in the second part of Section 145 of the Evidence Act is to be followed whether or not such previous statement in writing was made to an investigating police officer or otherwise. It is only in the case of a previous statement in writing made to a Police Officer during investigation of the very same case that the partial embargo under the proviso to Section 162 (1) Cr.P.C. operates prohibiting corroboration of the witness with respect to such previous statement and permitting only a contradiction with reference to the previous statement. The procedure for eliciting a contradiction under the second part of Section 145 of the Evidence Act is common to all previous statements in writing regardless of the manner of recording such previous statements.
2. The object of prohibiting a corroboration of a prosecution witness with regard to his “previous statements in writing” given to an investigating police officer, is to give the witness an unrestricted freedom to speak the truth before the Court during trial. The very fact that there is an interdict under Section 162 (1) Cr.P.C. against taking the signature of the witness is to ensure that he should not be pinned down to the statement recorded by the investigating police officer.
3. The distinction between the nature of user of a “previous statement” of a “prosecution witness” and cross-examination of such witness cannot be lost sight of.
4. In the case of a “previous statement in writing” by a witness, the cross-examiner has the liberty to elicit a “corroboration” by recourse to the first part of Section 145 of the Evidence Act and the liberty to elicit a “contradiction” by recourse to the latter limb of Section 145. But, if it is a “previous statement in writing” given by the witness to a Police Officer during the stage of investigation, the cross-examiner does not have the liberty to elicit any “corroboration” from the witness by recourse to the first limb of Section 145 but can only elicit a “contradiction” by recourse to the second limb of Section 145 in view of the prohibition under the proviso to Section 162 (1) Cr.P.C. But, the above prohibition does not take away the right of the cross-examiner to cross-examine the witness in relation to “relevant facts” as provided under the second limb of Section 138 of the Evidence Act by having recourse to the first limb of Section 145 of the Evidence Act.
5. The words “previous statements” occurring in Section 145 of the Evidence Act are not confined only to “previous statements” of a prosecution witness recorded under Section 161 (3) Cr.P.C. by an investigating police officer. The said words can also include other “statements” (for eg: “statements in a diary” maintained by the witness or “statements in a letter” sent by him etc.). All these “statements in writing” are matters in respect of which the witness can be cross-examined under the first limb of Section 145 of the Evidence Act as well. But, if the cross-examining counsel intents to contradict the witness by such writing, he can do so only by resort to the procedure laid down in the latter limb of Section 145 of the Evidence Act by drawing his attention to the contradictory parts of the statement in writing and after obtaining his explanation with regard to the contradiction. While in the case of all statements in writing by the witness (other than those falling under the proviso to Section 162 (1) Cr.P.C.), such statements can be used both for “contradiction” as well as “corroboration”, the statement of the witness recorded under Section 161 (3) Cr.P.C. by the investigating police officer in the case under trial can be used only for the purpose of “contradiction” and not a “corroboration” as restricted by the proviso to Section 162 (1) Cr.P.C. For proving the “contradiction” the procedure laid down in the latter limb of Section 145 of the Evidence Act should be resorted to. In fact, the same is the common procedure for proving a “contradiction” in all “previous statements in writing” whether recorded by a Police Officer or not.
6. Even though cross-examination must relate to “facts in issue” and “relevant facts”, it need not be confined to the matters stated in the chief-examination alone. (Vide the second limb of Section 138 of the Evidence Act.)
7. The very fact that the prosecution is given a right during “re-examination” to explain the “contradiction” elicited by the cross-examiner itself shows that the right of the cross-examiner under the proviso to Section 162 (1) Cr.P.C. is an unrestricted right of “cross-examination” as permissible under the second limb of Section 138 of the Evidence Act as per which the cross-examination should relate to relevant facts and is not confined to the facts stated in the chief examination alone. The only restriction is that while impeaching the credit of the prosecution witness under Section 155 (3) of the Evidence Act with respect to his statement recorded under Section 161 (3) Cr.P.C., the cross-examiner can only attempt to prove a “contradiction” and not a corroboration from the said previous statement of the witness in writing. Such contradictory portion of his previous statement to the police is to be proved by the procedure prescribed by the latter limb of Section 145 of the Evidence Act, as in the case of any other previous statement.
8. In actual practice also prosecution witnesses are subjected to cross-examination as permitted by the second limb of Section 138 of the Evidence Act by resort to both the limbs of Section 145 of the Evidence Act. Such cross-examination is never confined to proving a “contradiction” alone with regard to the previous statement of the witness in writing. If there are other previous statements of the witness in writing not recorded by a Police Officer, there cannot be any doubt that the first part of Section 145 of the Evidence Act can be made use of by the cross-examiner for corroborating the witness by recourse to Section 157 of the Evidence Act.
9. Supposing, after the cross-examination of a prosecution witness by the defence lawyer, no contradiction in the statement recorded under Section 161 (3) Cr.P.C. could be elicited from the witness, a question may arise as to whether the Court is bound to ignore the testimony of the prosecution witness which is bereft of any “contradiction”. The answer can only be in the negative. Similarly, the prohibition against proving a “corroboration” is only in relation to a statement recorded under Section 161 (3) Cr.P.C. in view of the proviso to Section 162 (1) Cr.P.C. There could be other previous statements of the witness in writing (such as statements in a letter or statements in an entry in a diary maintained by the witness etc.). In such cases those previous statements could be used not only for proving a contradiction but also a corroboration. Can the Court refuse to look into the testimony of such a witness on the ground that no “contradiction” was elicited from his statement given to the Police officer under Section 161 (3) Cr.P.C. ? Of course, not.

I am, therefore, presently inclined to hold that the minority view in Tahsildar Singh's Case (Supra – AIR 1959 SC 1012) lays down the correct interpretation regarding the impact of the proviso to Section 162 (1) Cr.P.C. (proviso to S.. 181 BNSS) on Section 145 of the Evidence Act (S.148 of the BSA) in the matter of cross-examining a prosecution witness.

Those who do not agree with this view of mine can certainly air their own opinion giving reasons in support of their dissent.

Author is a Former Judge, High Court of Kerala. Views Are Personal.