Case Note & Summary
The petitioner, Meena Tuyekar, the accused in a corruption case, challenged an order dated 18.1.2024 passed by the trial court allowing the Public Prosecutor to refresh the memory of PW1, a government officer, by showing him his statement recorded under Section 161 of the Code of Criminal Procedure, 1973 (CrPC) during examination-in-chief. PW1 had stated that due to the passage of time, he could not recollect the details of the raid. The prosecution sought permission to refresh his memory, which was granted by the trial court. The petitioner argued that such use of a Section 161 statement is impermissible except for contradiction during cross-examination under Section 145 of the Indian Evidence Act, 1872 read with Section 162 CrPC. The respondent State contended that Section 159 of the Evidence Act permits refreshing memory and that the accused would have an opportunity to cross-examine. The High Court analyzed the provisions and held that a Section 161 CrPC statement is not a contemporaneous document made by the witness or read by them soon after the transaction, and thus cannot be used to refresh memory under Section 159 Evidence Act. The only permissible use is to contradict the witness during cross-examination under Section 145 Evidence Act, as per Section 162 CrPC. The court relied on Simon v. State of Kerala and other precedents. The impugned order was quashed and set aside, and the petition was allowed.
Headnote
A) Criminal Procedure - Witness Examination - Refreshing Memory - Section 161 CrPC, Section 162 CrPC, Section 159 Evidence Act, Section 145 Evidence Act - The trial court erred in permitting the prosecution to refresh the memory of PW1 by showing his Section 161 CrPC statement during examination-in-chief. The High Court held that a Section 161 statement cannot be used to refresh memory under Section 159 Evidence Act as it is not a contemporaneous writing made by the witness or read by them soon after the transaction. The only permissible use of such statement is to contradict the witness during cross-examination under Section 145 Evidence Act, as per Section 162 CrPC. The impugned order was quashed and set aside. (Paras 16-24) B) Criminal Procedure - Use of Section 161 CrPC Statements - Contradiction - Section 162 CrPC, Section 145 Evidence Act - The High Court reiterated that the statement recorded under Section 161 CrPC is only for investigation purposes and cannot be used for any purpose other than contradicting the witness in the manner provided under Section 145 Evidence Act during cross-examination. Allowing its use to refresh memory during examination-in-chief violates the statutory scheme. (Paras 17-22)
Issue of Consideration
Whether the trial court was justified in allowing the Public Prosecutor to refresh the memory of a prosecution witness (PW1) by showing him his statement recorded under Section 161 of CrPC during examination-in-chief.
Final Decision
The impugned order dated 18.1.2024 passed by the trial court is quashed and set aside. The petition is allowed. Rule is made absolute.
Law Points
- Section 161 CrPC statement cannot be used to refresh memory during examination-in-chief
- Section 162 CrPC restricts use of Section 161 statements to contradiction during cross-examination
- Section 159 Evidence Act permits refreshing memory only from contemporaneous writings made by the witness or read by them soon after the transaction
- Section 145 Evidence Act deals with cross-examination as to previous statements in writing
