The Kerala High Court in Santhosh Kumar vs State held that an accused holds an unrestricted statutory right under Section 311 CrPC recall of witness procedures to summon an investigating officer to prove prior statements recorded under Section 161 CrPC in another case for contradicting witness testimony and impeaching credit under Section 145 and Section 155(3) of the Indian Evidence Act.
Judicial Overview and Core Holding
In Criminal Miscellaneous Case No. 6611 of 2016, decided on 26 October 2016 by Hon'ble Mr. Justice Raja Vijayaraghavan V., the Santhosh Kumar vs State Kerala High Court decision resolved a central controversy regarding the scope of Section 311 of the Code of Criminal Procedure, 1973 (CrPC) and the evidentiary mechanisms for impeaching prosecution witnesses. The High Court established that the statutory ban under Section 162 of the Code is confined strictly to the inquiry or trial of the offence under investigation at the time when the statement was made. Section 162 does not prohibit the use of a Section 161 statement recorded in another police investigation to cross-examine and contradict a witness during a subsequent criminal trial.
The court clarified that where a witness denies giving a statement in another case, the defence is legally entitled under Section 145 and Section 155(3) of the Indian Evidence Act, 1872 to recall the investigating officer who recorded the statement to prove the contradiction. Depriving the accused of this procedural mechanism causes severe prejudice and impairs the constitutional mandate of a fair trial. Consequently, the High Court set aside the trial court's rejection order and directed the recall and examination of the investigating officer.
Case Particulars and Representation
Court: In the High Court of Kerala at Ernakulam
Judge: Hon'ble Mr. Justice Raja Vijayaraghavan V.
Case Number: Crl.M.C. No. 6611 of 2016
Date of Order: 26th October, 2016
Trial Reference: Crl.M.P. No. 2715 of 2016 in S.C. No. 1485 of 2008 on the file of Additional Sessions Court-VII, Thiruvananthapuram (Arising from Crime No. 51 of 2007 of Petta Police Station, Thiruvananthapuram District)
Petitioner / Accused No. 1: Santhosh Kumar, Thiruvananthapuram.
Appearing for Petitioner: Senior Advocate Sri B. Raman Pillai along with Advocates Sri R. Anil, Sri Sujesh Menon V.B., Sri T. Anil Kumar, Sri Thomas Abraham (Nilackappillil), Sri M. Vivek, Sri A. Rajesh, Sri B. Krishna Kumar, and Sri M. Sunilkumar.
Respondent / Complainant: State of Kerala, represented by the Public Prosecutor, High Court of Kerala, Ernakulam.
Appearing for Respondent: State Attorney Sri K.V. Sohan.
Operative Text of the Judgment
1. The petitioner is the 1st accused in S.C. No. 1485 of 2008 on the file of the Additional Sessions Judge-VII, Thiruvananthapuram. He along with the other accused stand indicted for offences punishable under Sections 120B, 143, 147, 148, 212, 201, and Section 302 read with Section 149 of the Indian Penal Code, 1860.
Trial Court Proceedings and Section 311 Application
2. Challenge in this petition is directed against the order by which the application filed under Section 311 of the Code of Criminal Procedure (hereinafter referred to as "the Code" for brevity) to recall and re-examine PW75 was dismissed by the learned Sessions Judge.
3. Trial in the aforesaid case had commenced and as many as 77 witnesses were examined and the prosecution evidence was closed.
4. PW5, Amaikanth, was cited to prove Exhibit P2 and Exhibit P3 mahazars dated 11.4.2011. By these mahazars, prosecution sought to prove the recovery of the weapons allegedly used by accused Nos. 2 and 3.
5. According to the defence, PW5 was a close friend of deceased Vishnu and he is also a local leader of a prominent political party. The recovery was stage-managed according to them. To discredit the said witness, suggestive questions were put while he was in the box which was promptly denied. According to the defence, PW5 and deceased Vishnu had been cited as CW No. 159 and CW No. 160 in the final report in Crime No. 51 of 2007, relating to the case involving the murder of Aprani Krishnakumar. PW75, the investigating officer in the instant case had investigated that case as well and he had recorded his Section 161 statement of PW5. The said statement, according to the defence, contained specific reference that Amaikanth had close connection with deceased Vishnu and that he was a local leader of CPI(M) and also the CITU, the trade union wing of CPI(M).
6. Later, when PW75 was examined, he admitted before Court that he had conducted the investigation in Crime No. 51 of 2007 and that he had submitted the final report before Court. The said case had been tried and disposed of as S.C. No. 1540 of 2009 in the year 2013 itself. He also admitted in his evidence that PW5 was cited as a witness along with deceased Vishnu in the said case. It appears that when the said witness was questioned, the defence was not in possession of the previous statement of PW5 in S.C. No. 1540 of 2009.
Recall and Cross-Examination of PW5
7. Immediately thereafter, the defence filed an application to recall PW5, which was allowed by the Court below. This was after obtaining the copy of the final report in Crime No. 51 of 2007 of the Petta Police Station by filing an application before this Court where Crl. Appeal No. 1250 of 2003 challenging the conviction and sentence of one of the accused was pending.
8. PW5 was further cross-examined and in the course of examination, the witness admitted that he was a witness in the earlier case but was not examined during the trial. He was cross-examined with reference to its previous statement in Crime No. 51 of 2007 of Petta Police Station. When he denied, an attempt was made by the defence counsel to confront him with his previous statement in writing under Section 145 of the Evidence Act. The said procedure was objected to by the learned Public Prosecutor. However, pointed questions with reference to his previous statement in Crime No. 51 of 2007 were put to the witness which were emphatically denied. Thereafter, the petitioner filed an application for recalling PW75 to prove the certified copy of the final report in Crime No. 51 of 2007 of the Petta Police Station which was tried as S.C. No. 1540 of 2009 and was disposed of. The attempt of the defence was to prove the fact that PW75 had recorded the statement of PW5 under Section 161 of the Code and to discredit him with his previous statement. The said application was dismissed by the impugned order.
Rival Contentions Advanced by Learned Counsel
9. I have heard Sri B. Raman Pillai, the learned Senior Counsel appearing for the petitioner as well as Sri K.V. Sohan, the learned State Attorney.
10. The learned Senior Counsel referring to the decision of this Court in Surendran v. State of Kerala, 1993 (2) KLT 674 and of the Apex Court in State of Kerala v. Babu, (1999) 4 SCC 621 contended that the reasons given by the Court below to reject the application cannot be sustained. According to the learned Counsel Section 162 of the Code does not prohibit the use of statement of witness recorded in any other proceeding other than the enquiry or trial in respect of the offence for which the investigation was conducted. It is further submitted that the only objective of the defence was to challenge the credibility of PW5 by bringing on record that he was lying on a material point. It is further argued that the learned Sessions Judge had permitted the recalling of PW5 for further examination after being convinced about the nature of the contradictory statements made by him in the statement recorded under Section 161 of the Code in Crime No. 51 of 2007 of the Petta Police Station. While the witness was cross-examined, he was confronted with his previous statement in writing. He had gone to the extent of stating that he had not given any statement to PW75 under Section 161 of the Code. Sufficient materials relating to his connection with the deceased Vishnu and his party affiliation was brought out with reference to his previous statement while he was cross-examined. According to the counsel, the only course open to the defence is to recall the Investigating officer who had recorded his previous statement in the other crime and prove the said aspects. The learned Senior Counsel would further submit referring to the deposition of PW75, that the observation of the Court below that while the Investigating officer was cross-examined, no question was put to him in connection with the statement given by PW5 in Crime No. 51 of 2007 of Petta Police Station is clearly incorrect. Finally it is submitted that the denial of an opportunity to the defence to recall PW75 for proving the aforesaid aspect had occasioned in miscarriage of justice.
11. Per Contra, the learned State Attorney would take this Court through the sequence of events and would submit that the attempt is only to protract the trial proceedings. It is pointed out that when PW5 was recalled, the defence was not in possession of the certified copy of the 161 statement of PW5 in Crime No. 51 of 2007. The witness was not confronted with his previous statement in writing and in view of the above, no purpose would be served in recalling the Investigating Officer. It is further submitted that the trial in Crime No. 51 of 2007 has already been completed and Appeal is pending before the Court. It is further submitted that the learned Additional Sessions Judge was justified in dismissing the application on the ground that the further examination of PW75 was not essential for arriving at a just decision.
Judicial Analysis and Consideration of Precedents
12. Have considered the rival submissions and have gone through the depositions of PW5 and PW75. I have also anxiously gone through the impugned order.
13. The first reason given by the Court below to disallow the application is that the defence had not produced the certified copy of the 161 statement of the witness when PW5 was recalled and cross-examined. It is evident from the deposition of PW5, that the defence had put specific questions by inviting his attention to the previous statement in Crime No. 51 of 2007 of the Petta Police Station. I am also not able to accept the finding of the Court below that no questions were put to PW75 in connection with Crime No. 51 of 2007. The deposition is replete with questions in connection with the said crime. All that the defence wanted to bring on record was that PW5 was also a witness in the previous case and that he had given a statement touching his affiliation with a political party and also that he had acquaintance with the deceased Vishnu. The right of the cross-examiner could not have been denied on the ground that the said case had no connection with the present case.
Applicability of Section 162 CrPC in Collateral Proceedings: Surendran Case
14. In Surendran v. State of Kerala, 1993 (2) KLT 674 the question whether 161 statement recorded by the Police in another case could be used for the purpose of cross-examining one of the prosecution witness had come up for consideration. It was held as follows :
"6. S.161 of the Code empowers a police officer, who investigates the case, to examine any person supposed to be acquainted with the facts and circumstances of the case. The police officer is also given the option to reduce into writing what the person tells him. S.162 of the Code which contains the prohibition regarding use of such statements provides that no such statement shall 'be used for any purpose, save as hereinafter provided, at any inquiry or trial in respect of any offence under investigation at the time when such statement was made'. From the sweep of S.162 of the Code legislature protected the right of a cross examiner to use the statement for contradicting the witness who made such statement. Of course, the right of the accused to use it for contradiction is unrestricted while prosecution can use it for contradiction only if the court permits. Even this can be done only when a witness is called for the prosecution and not otherwise.
7. The words 'save as hereinafter provided' in S.162 of the Code have been used in parenthetical form. If we read the main body of the section without those words, it would mean that the statement made by any person to a police officer during investigation shall not be used for any purpose 'at any inquiry or trial in respect of any offence under investigation at the time when such statement was made'. An attempt is made to interpret the words 'be used for any purpose' as indicative that the sweep of the ban is plenary. But a close reading of the section would reveal that the ban is confined to the use of the statement only at any inquiry or trial in respect of any offence under investigation at the time when such statement was made. In other words, S.162 of the Code does not prohibit the use of such statement in any other proceeding (other than the inquiry or trial in respect of the offence for which the investigation was conducted). Thus, even in the limited application of the ban, one exception which Parliament advisedly provided is to safeguard the right of the accused to contradict a prosecution witness and right of the prosecution also in certain cases under certain conditions.
8. The right to cross examine a witness with reference to his previous statement can be traced to S.145, 146 and 155(3) of the Indian Evidence Act. S.145 says that a witness may be cross examined as to previous statements made by him in writing or reduced to writing. This is the general right of a cross examiner. The only restriction provided is that the previous statement must be relevant to the matters in question. Section also prescribes the procedure to be followed if the cross examiner wants to contradict the witness as to the previous statements. S.146 empowers a cross examiner to put any question to test the veracity of the witness. Of course, the vast scope covered by S.146 is subject to the court's power to control such questions as provided in S.148 to 152 of the Evidence Act. Subject to such control the cross examiner is entitled to put any question to test the veracity of the testimony of the witness. S.155(3) of the Evidence Act says that any former statement of a witness which is inconsistent with his evidence can be proved for impeaching the credit of the witness. S.155(3) of the Evidence Act applies to any previous statement whether oral or in writing. But S.145 applies only to previous statement in writing. Thus, S.145, 146 and 155(3) of the Evidence Act are complementary to each other. When they are read together, a cross examiner cannot be restricted from putting questions except to the extent indicated in S.148 to 152 of the Evidence Act. This general right of the cross examiner has to be borne in mind when deciding the present question.
9. S.162 of the Code has been inserted for protecting the interest of the accused (vide Tahsildar Singh v. State of U.P., AIR 1959 SC 1012). Hence that which was intended to provide as a protection to the accused cannot, by interpretation, be made a handicap to the accused. S.162 is never intended to curb the right of the accused to contradict a witness with his previous statement.
10. The upshot of the above discussion is that the right of accused to cross examine the witness by contradicting him with reference to any previous statements made by that witness has not been trammelled by S.162 of the Code. Secondly, the ban contained in the section is applicable only where such statement is sought to be used at any inquiry or trial in respect of any offence under investigation at the time when such statement was made."
Supreme Court Authority: State of Kerala v. Babu
15. Further, in State of Kerala v. Babu, (1999) 4 SCC 621 the Apex Court was confronted with the question as to whether the statement of a witness recorded under S.161 of Cr.P.C. in one particular crime could be used against that witness in any other trial enquiry or proceedings by the accused.
11. "The High Court in the impugned judgment proceeded on the basis that statement recorded by an investigating officer in any case which was under investigation being a statement made under S.161 of the Code, the same can be used for the limited purpose provided under S.162 of the Code read with S.145 of the Evidence Act. There can be no quarrel with this approach of the High Court in regard to the use of the previous statements of a witness made in the course of another investigation being used in the course of another criminal trial. This is because, as seen from the observations of this Court in the case of Tahsildar Singh (supra) the very object of enactment of S.161 of the Code and S.145 of the Evidence Act is to create a right in the accused to make use of the previous statements of the witnesses for the purpose of contradiction and for impeaching the merit of the witness. This right has not been taken away by S.172 of the Code and, as noticed above, there is no prohibition in regard to this right of the accused either under the Code or under the Evidence Act.
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13... If that be so and if the court comes to the conclusion that the production of such document is necessary or desirable then, in our opinion, the court is entitled to summon the case diary of another case under S.91 of the Code de hors the provisions of S.172 of the Code for the purpose of using the statements made in the said diary, for contradicting a witness. When a case diary, as stated above, is summoned under S.91(1) of the Code then the restrictions imposed under Sub-s.(1) and (3) of S.172 would not apply to the use of such case diary but we hasten to add that while using a previous statement recorded in the said diary, the court should bear in mind the restrictions imposed under S.162 of the Code and S.145 of the Evidence Act because what is sought to be used from the case diary so produced, are the previous statements recorded under S.161 of the Code."
(Emphasis supplied)
16. Having regard to the above binding precedents there cannot be any doubt that S.162 of the Code does not prohibit the use of the 161 statement of any witness in any other proceeding other than the inquiry or trial in respect of the offence for which the investigation was conducted. However the Apex Court has cautioned that the court should bear in mind the restrictions imposed under S.162 of the Code and S.145 of the Evidence Act because what is sought to be used from the case diary so produced, are the previous statements recorded under S.161 of the Code. In view of the above, I am of the view that the reasons on the basis of which the application was dismissed by the Court below cannot be sustained.
Exercise of Section 311 Discretion: Shiv Kumar Yadav and Ram Mehar
17. In so far as the powers of the trial Court under Section 311 of the Code is concerned, the Apex Court has issued several guidelines in AG v. Shiv Kumar Yadav and Another, (2016) 2 SCC 402 and in State of Hariyana v. Ram Mehar and Others, 2015 (8) SCALE 192. In Ram Mehar (supra) it was held on facts that the approach can be liberal but that does not mean that liberal approach shall be the rule and all other parameters become exception. It was further held that the court should be conscious of the position that, after all, the trial is basically for the prisoners and the court should afford an opportunity to them in the fairest manner possible. In that parity of reasoning, it would be safe to err in favour of the accused getting an opportunity rather than protecting the prosecution against possible prejudice at the cost of the accused. It was finally held that the power under Section 311 of the Code must be invoked only in order to meet the ends of justice for strong and valid reasons and the same must be exercised with care, caution and circumspection. The courts were directed to bear in mind that fair trial entails the interest of the accused, the victim and the society and therefore the grant of fair and proper opportunities to the persons concerned must be ensured being a constitutional goal, as well as a human right.
18. After having anxiously considered the relevant facts and circumstances and after considering the reasons canvassed by the petitioner for recalling the said witness, I am of the view that an opportunity is to be granted to the accused to secure the interest of justice.
Final Order and Practical Directions
The application will stand allowed. The learned Additional Sessions Judge is directed to recall PW75 and to permit the accused to cross examine the said witness. The proceedings shall be expedited and the court below shall endeavor to complete the above proceeding within two weeks from the date of receipt of a copy of this order.
The petition is disposed of.
Detailed Legal Analysis and Trial Implications
The determination in this case illuminates the delicate statutory balance between police investigation records and the constitutional rights of the defence during criminal trials. Section 161 statements are not substantive evidence; they exist primarily as investigative records. The legislature intentionally restricted the general use of police statements under Section 162 CrPC to protect accused persons from fabricated or coerced police records being used against them. However, Parliament specifically created an exception allowing the accused to deploy prior statements for contradicting witness under Section 162 CrPC rules. When a prosecution witness gives evidence in court that conflicts with statements given to the police, the accused is entitled to confront the witness with those inconsistencies.
The procedural mechanism for executing this contradiction is governed by Section 145 and Section 155(3) of the Indian Evidence Act, 1872. Under Section 145, the cross-examiner must first draw the attention of the witness to the specific portion of the previous statement intended to be contradicted. If the witness admits making the statement, the contradiction is established. However, if the witness denies making the statement, the cross-examiner must prove that the witness did indeed make it. This can only be accomplished by examining the police officer who recorded the statement. Without examining the investigating officer, the foundation for impeaching witness credit Section 145 Evidence Act remains incomplete, and the court cannot legally rely on the contradiction.
In trials involving serious offences such as homicide, where conspiracy, weapon recoveries, and witness motives are central, testing witness credibility is essential. In the present case, the defence sought to establish that PW5, who proved weapon recovery mahazars, had concealed his close association with the deceased and his political affiliations. By demonstrating that PW5 admitted these affiliations in an earlier police statement recorded by the same investigating officer, the defence aimed to show bias and fabricate recovery. Denying the Section 311 application to recall the investigating officer prevented the defence from placing this material contradiction on record.
Justice Raja Vijayaraghavan V. correctly observed that Section 162 CrPC does not bar the use of statements recorded in other investigations. The statutory prohibition is limited to the specific investigation in which the statement was made. When an accused seeks to use a statement recorded in a different case, the general provisions of the Evidence Act apply, subject to procedural safeguards. Trial courts must not treat Section 311 CrPC as a rigid barrier; rather, where evidence is essential to the just determination of the case, the court has a duty to summon or recall witnesses to prevent miscarriage of justice.
This procedural standard harmonizes with broader appellate scrutiny of criminal trials, as explored in criminal procedure analysis in K A Hashim v State. Similarly, ensuring adequate opportunity for witness examination reflects foundational civil and criminal trial rules examined in procedural witness examination in Kalaiselvi v Sivasubramanian.
Core Principles Established in the Judgment
- Section 162 CrPC Restriction is Limited: The prohibition on using Section 161 statements applies only to the trial of the specific offence under investigation when the statement was made. It does not prohibit using statements recorded in collateral investigations to contradict witnesses.
- Right to Impeach Witness Credit: Under Section 145 and Section 155(3) of the Evidence Act, the accused has an unrestricted right of cross examination with previous 161 statement materials to demonstrate inconsistencies and bias.
- Mandatory Examination of Investigating Officer: When a witness denies making a prior statement to the police, the defence must be permitted under Section 311 CrPC to examine the investigating officer who recorded the statement to formally prove the contradiction.
- Broad Scope of Section 311 CrPC: Criminal courts possess wide discretionary powers under Section 311 CrPC to recall witnesses at any stage of trial when necessary for arriving at a just decision and guaranteeing a fair trial.
The Santhosh Kumar ruling serves as an authoritative precedent for criminal defence practitioners, clarifying that prior investigative statements from connected proceedings are admissible tools for testing witness veracity and securing justice.