The Kerala High Court recently held that the embargo in Section 172(3) of the Code of Criminal Procedure (CrPC) does not take away the right of the accused to use previous statements of witnesses to impeach their testimonies.
Single Judge Justice K Haripal ruled that in view of Section 161 of the CrPC and Section 145 of the Evidence Act, it is the right of every accused in a criminal trial to make use of the previous statements of a witness including the statements recorded by the investigating agency during the course of investigation for the purpose of establishing contradiction in evidence or to discredit the witness.
“This right has not been taken away by Section 172 of the CrPC. In other words, such a right is an indefeasible one available to the defence,” the Court held, placing reliance on the Supreme Court judgment in Tahsildar Singh and others v. State of UP.
The Court opined that this is imperative to ensure that any trial which is primarily aimed at ascertaining the truth, is fair to all concerned.
“A fair trial is the hall mark of a civilised society. While ensuring fair trial, interests of the accused also have to be protected. There are in built mechanisms in our statutes for protecting the interests of all. The attempt of the petitioner is to preserve his interest which is statutorily protected,” the order said.
The order was passed in two petitions preferred by the first accused in a double murder case. There were ten accused, including the first accused, all facing trial.
While the prosecution evidence was being adduced, the petitioner’s counsel by way of the Right to Information Act, obtained a report of the DySP Crime Branch which allegedly contained contradictory statements from some witnesses.
Thereafter, the accused filed an application before the Additional Sessions Judge for issuing summons to witnesses, including the DySP so as to impeach the testimony of some of the witnesses
However, this was disallowed on the premise that no further investigation was conducted by him and that no such report is available before court; statements of such witnesses as part of further investigation also were not available.
Therefore, the petitioner(accused) approached the High Court, through advocate Renjith B Marar.
The petitioner contended that the embargo under Section 172(3) of the CrPC would not be applicable to the instant case.
Section 172(3) reads as follows:
“Neither the accused nor his agents shall be entitled to call for such diaries, nor shall he or they be entitled to see them merely because they are referred to by the Court.”
The petitioner submitted that he had not called for the case diary. Rather, it was submitted that the application to summon the DySP was filed under Sections 233(3) and 91 of the CrPC for producing statements recorded by him for the purpose of contradicting and impeaching some of the prosecution witnesses.
It was contended that even though the prosecution does not rely on those documents, the indefeasible right of the accused persons to impeach the testimony of witnesses cannot be denied.
On the other hand, according to the Senior Public Prosecutor, no such further investigation was conducted by the said DySP. Therefore, the Additional Sessions Judge was right in rejecting the application.
It was submitted that there was only one investigation which was conducted by the local police and all the witnesses were examined on the side of the prosecution. According to them, the embargo under Section 172(3) of the CrPC is absolute, that such a document is not available for the defence.
Moreover, the report of the DySP was merely a petition enquiry, the Public Prosecutor claimed.
The Court noted that the DySP had conducted an enquiry on the feasibility of conducting further investigation by the Crime Branch and during the course of such enquiry some of the witnesses were examined and their statements were reduced into writing.
It opined that previous statements given by the prosecution witnesses in respect of the very same transaction are very relevant and important for the purpose of understanding the real facts.
Therefore, it allowed the petition and directed the Additional Sessions Judge to issue summons to the DySP as well and also issue summons for the production of documents under Section 91 of the CrPC.
Read Order here: