SURENDRAN Vs. STATE OF KERALA

JUDGEMENT

(1.) AS trial in a murder case was in progress, the defence counsel sought permission to use a statement recorded by police in another case for cross-examining one of the prosecution witnesses. Learned Sessions Judge granted permission to do so. Legality of the said order is now challenged here.

(2.) FACTS necessary for the limited question raised here are the following: Police registered a case in respect of death of one muraleedharan and after completion of investigation laid charge sheet against four persons as accused for the offence of murder. Government appointed a special Public Prosecutor to conduct prosecution in the case. In the Sessions court some witnesses were examined for the prosecution. Defence counsel, at a particular stage of the trial, brought to the notice of the Learned Sessions judge that the same Police had registered another case in respect of another incident which happened later on the same night and investigation has been conducted by the police into that later incident. At the request of the defence counsel, the file relating to the latter case was brought down to the Sessions court. Defence counsel then moved an application for permitting him to further cross-examine one of the witnesses (who has already examined with reference to the statement recorded by the investigating officer in connection with the second incident Special Public Prosecutor opposed it, but learned Sessions judge overruled the objections and granted permission to further cross-examine the witness with reference to the said statement.

(3.) THE words' 'save as hereinafter provided'' in Sec. 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 madeto 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, Sec. 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.