Accused Has Absolute Right To Use Previous Statements During Cross-Examination For Contradiction To Shake Veracity of Maker’s Evidence: Kerala High Court
The Kerala High Court was considering a criminal case filed under Section 528 of the Bharatiya Nagarik Suraksha Sanhita, 2023.
Justice A. Badharudeen, Kerala High Court
While directing the recall of three witnesses, the Kerala High Court has held that it is the absolute right of the accused to use previous statements during cross-examination of the maker of the same for the purpose of contradicting the maker to shake the veracity of the evidence spoken by him and to make it untrustworthy of credit.
The High Court was considering a criminal case filed under Section 528 of the Bharatiya Nagarik Suraksha Sanhita, 2023.
The Single Bench of Justice A. Badharudeen stated, “In fact, it is the absolute right of the accused to use previous statements during cross-examination of the maker of the same for the purpose contradicting the maker to shake the veracity of the evidence spoken by him and to make it as untrustworthy of credit, and the same is the main purpose of cross-examination as well. Therefore, the reasons for disallowing use of previous statement for the purpose of contradicting the witnesses during crossexamination found to be illegal and the order would require interference.”
Advocate J.R.Prem Navaz represented the Petitioner, while Advocate M.P. Prasanth represented the Respondent.
Factual Background
The case emanated from the grievance of the petitioners that, during the cross-examination of the witnesses 1 to 3, the defence counsel’s attempt to use previous statements of the said witnesses for the purpose of contradicting them was disallowed by the Sessions Judge.
Reasoning
On perusal of the reasons found by the Sessions Judge to disallow the use of previous statements recorded under Section 161 of the Code Of Criminal Procedure holding the view that the said procedure is not permitted under Section 162, the Bench stated, “...it is noticeable that the learned Sessions Judge failed to understand what is intended by Section 162 of CrPC and what is the use of statements recorded under Section 161 of CrPC by an Investigating Officer during investigation.”
The Bench explained that a statement recorded under Section 161 of CrPC is not evidence by itself and the use of the same during evidence is limited within the mandate of Section 162 of CrPC The Bench further explained that the use of statements recorded under Section 161 of CrPC/previous statements recorded by an Investigating Officer has been provided in Section 162 of CrPC, and the use is limited to contradict the witness in the manner provided under Section 145 of the Indian Evidence Act.
“Therefore, use of a statement recorded under Section 161 of CrPC to contradict a witness is not at all prohibited by Section 162 of CrPC and the restriction is its use as evidence in a case to prove a fact in issue. Therefore, the reasons stated by the learned Sessions Judge to disallow the use of previous statements/statements recorded under Section 161 of CrPC for the purpose of contradicting a witness is not permitted under Section 162 of CrPC is absolutely wrong and the same would not sustain in the eye of law”, the order read.
Thus, finding the order disallowing the use of previous statement for the purpose of contradicting the witnesses to be illegal, the Bench allowed the petition with a direction to the Sessions Judge to recall PWs 1 to 3 and permit the petitioners’ counsel to cross-examine them by using previous statement, in tune with the mandate of Section 148 of the Bharatiya Sakshya Adhiniyam, 2023 (Section 145 of the Indian Evidence Act, 1872).
Cause Title: Lawrence v. State of Kerala (Neutral Citation: 2026:KER:34799)