Section 162 CrPC Does Not Prevent A Trial Court From Putting Questions To Witnesses Suo Motu To Contradict Them : Supreme Court

The Supreme Court observed that Section 162 CrPC does not affect a Court's power to look into documents or put questions to witnesses suo motu to contradict them.

 "There is in our opinion nothing in Section 162 of the CrPC which prevents a Trial Judge from looking into the papers of the chargesheet suo motu and himself using the statement of a person examined by the police recorded therein for the purpose of contradicting such person when he gives evidence in favour of the State as a prosecution witness.", the bench of Justices B R Gavai, J B Pardiwala and Prashant Kumar Mishra observed.

The court noted this while considering an appeal filed by an accused who was convicted and sentenced to death for the offence of rape and murder of a 10-year old girl. The court noted that the case of all the witnesses before the police was that it was some other person (not the present accused) who had come to the house of the victim on the fateful day and date and had taken the victim along with him to his house to watch TV and that he found locking the door. Whereas in deposition before the Trial Court, the witnesses stated that it was the accused-appellant who was last seen with the victim.

The court said that neither the defence counsel nor the public prosecutor nor the presiding officer of the Trial Court and nor the High Court thought fit to look into these contradictions. 

Section 162 CrPC provides that no statement made by any person to a police officer in the course of an investigation, whether it be recorded or not, shall be used for the purpose save as provided in the first proviso to the Section. The first proviso says that when any witness, whose statement has been reduced into writing by the police in accordance with the provisions of the CrPC, is called for the prosecution in inquiry or trial, the accused, with the permission of the court, may contradict the  witnesses in the manner provided by Section 145 of the Evidence Act.

The question considered by the court was this: As the first part of Section 162 prohibits the use of the statement of a witness to a police officer for any purpose, other than that subsequently provided for in the proviso, and as the proviso says that the Court may permit the accused to contradict the witness with his previous statement, does the Court have power to do anything suo motu. 

Stressing on the word “purpose” used in the proviso to Section 162, the bench said:

"The purpose mentioned in the proviso is the purpose of contradicting the evidence given in favour of the State by a prosecution witness in Court by the use of the previous statement made by such witness to the police officer. The purpose is to discredit the evidence given in favour of the prosecution by a witness for the State. The Section prohibits the use of the statement for any other purpose than this. It does not say that the statement can only be used at the request of the accused. The limitation or restriction imposed in the first part of Section 162 CrPC relates to this purpose for which the statement may be used; it does not relate to the procedure which may be adopted to effect this purpose.

The proviso which sets out the limited purpose also mentions the way in which an accused person may contradict the witness with his previous statement made to the Police, but it does not in any way purport to take away the power that lies in the Court to look into any document, that it considers necessary to look into for the ends of justice and to put such questions to a witness as it may consider necessary to elicit the truth. We realise that the proviso would prevent the Court from using statements made by a person to a police officer in the course of investigation for any other purpose than that mentioned in the proviso but it does not in any other way affect the power that lies in the Court to look into documents or put questions to witnesses suo motu. It seems to us to be absurd to suggest that a Judge cannot put a question to a witness which a party may put. In this connection we would refer to the provisions of Section 165 of the Evidence Act, where the necessity of clothing the Judge with very wide powers to put questions to witnesses and to look into documents is recognised and provided for."

"There is in our opinion nothing in Section 162 of the CrPC which prevents a Trial Judge from looking into the papers of the chargesheet suo motu and himself using the statement of a person examined by the police recorded therein for the purpose of contradicting such person when he gives evidence in favour of the State as a prosecution witness. The Judge may do this or he may make over the recorded statement to the lawyer for the accused so that he may use it for this purpose. We also wish to emphasise that in many sessions cases when an advocate appointed by the Court appears and particularly when a junior advocate, who has not much experience of the procedure of the Court, has been appointed to conduct the defence of an accused person, it is the duty of the Presiding Judge to draw his attention to the statutory provisions of Section 145 of the Evidence Act."

The court found that there were serious lapses on the part of the defence in not proving major contradictions in the form of material omissions surfacing from the oral evidence of the prosecution witnesses. The court therefore set aside remitted the matter back to the High Court for deciding the death reference afresh.

Munna Pandey vs State of Bihar - 2023 LiveLaw (SC) 744 - 2023 INSC 793 

Code of Criminal Procedure, 1973 ; Section 162 - There is nothing in Section 162 of the CrPC which prevents a Trial Judge from looking into the papers of the chargesheet suo motu and himself using the statement of a person examined by the police recorded therein for the purpose of contradicting such person when he gives evidence in favour of the State as a prosecution witness. The Judge may do this or he may make over the recorded statement to the lawyer for the accused so that he may use it for this purpose - The proviso would prevent the Court from using statements made by a person to a police officer in the course of investigation for any other purpose than that mentioned in the proviso but it does not in any other way affect the power that lies in the Court to look into documents or put questions to witnesses suo motu. (Para 45-48)

Code of Criminal Procedure, 1973 ; Section 366-368 - In a reference for confirmation of the sentence of death, the High Court is under an obligation to proceed in accordance with the provisions of Sections 367 and 368 resply of the CrPC. Under these Sections the High Court must not only see whether the order passed by the Sessions Court is correct but it is under an obligation to examine the entire evidence for itself, apart from and independently of the Sessions Court's appraisal and assessment of that evidence - The Court must examine the appeal record for itself, arrive at a view whether a further enquiry or taking of additional evidence is desirable or not, and then come to its own conclusion on the entire material on record whether conviction of the condemned prisoner is justified and the sentence of death should be confirmed - In this case, the court found serious lapses on the part of the defence in not proving major contradictions in the form of material omissions surfacing from the oral evidence of the prosecution witnesses - remit the matter back to the High Court for deciding the death reference. (Para 2, 57-60)

Code of Criminal Procedure, 1973 ; Section 53A - Failure to subject the accused to medical examination by a medical practitioner - A serious flaw- Medical examination of an accused assumes great importance in cases where the victim of rape is dead and the offence is sought to be established only by circumstantial evidence. (Para 24-29)

Fair Trial - Free and fair trial is sine-qua-non of Article 21 of the Constitution of India. If the criminal trial is not free and fair, then the confidence of the public in the judicial fairness of a judge and the justice delivery system would be shaken. Denial to fair trial is as much injustice to the accused as to the victim and the society. No trial can be treated as a fair trial unless there is an impartial judge conducting the trial, an honest, able and fair defence counsel and equally honest, able and fair public prosecutor. A fair trial necessarily includes fair and proper opportunity to the prosecutor to prove the guilt of the accused and opportunity to the accused to prove his innocence. (Para 64-72)

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