Case Note & Summary
The applicants, accused in Sessions Trial No.144/2012 pending before the Additional Sessions Judge, Akola, filed an application on 9.10.2014 seeking permission to file on record a CD of an interview given by PW-3 Mohd. Ijaz to a local news channel. The learned Additional Sessions Judge rejected the application on the ground that the oral statement recorded on the CD did not fall within the scope of Section 145 of the Indian Evidence Act, 1872, which permits cross-examination of a witness with reference to a previous written statement only. The applicants challenged this order before the Bombay High Court. The High Court, after hearing the parties, held that the trial court's interpretation was erroneous. The court observed that Section 145 of the Evidence Act allows a witness to be cross-examined as to previous statements made by him in writing or reduced into writing, and such statements may be proved to contradict him. The court noted that the law settled by the Supreme Court in N. Sri Rama Reddy v. Attorney-General for India, AIR 1971 SC 1162, and followed in Havovi Kersi v. Kersi Gustad, 2011 (3) Mh.L.J. 564, clearly holds that a previous oral statement recorded on tape can be used to contradict a witness under Section 145. The High Court therefore allowed the application, set aside the impugned order, and directed the trial court to permit the applicants to file the CD and use it for cross-examination of PW-3 in accordance with law.
Headnote
A) Evidence Law - Cross-Examination - Section 145 of the Indian Evidence Act, 1872 - Previous Oral Statement Recorded on Tape - The court considered whether a video CD of an interview given by a witness to a news channel could be used to contradict the witness under Section 145. The trial court had rejected the application holding that Section 145 only permits cross-examination with reference to previous written statements. The High Court held that Section 145 includes previous oral statements reduced into writing or recorded on tape, and the CD could be used for cross-examination. The court relied on N. Sri Rama Reddy v. Attorney-General for India, AIR 1971 SC 1162 and Havovi Kersi v. Kersi Gustad, 2011 (3) Mh.L.J. 564. (Paras 4-8)
Issue of Consideration
Whether a video CD containing an oral statement of a witness given to a news channel can be used for cross-examination under Section 145 of the Indian Evidence Act, 1872.
Final Decision
The High Court allowed the application, set aside the impugned order dated 9.10.2014 passed by the Additional Sessions Judge, Akola, and directed the trial court to permit the applicants to file the CD and use it for cross-examination of PW-3 in accordance with law.
Law Points
- Section 145 of the Indian Evidence Act
- 1872 permits cross-examination of a witness with reference to previous written statement
- but also includes previous oral statement reduced into writing or recorded on tape
- previous statement recorded on tape can be used to contradict a witness
- N. Sri Rama Reddy case (AIR 1971 SC 1162) and Havovi Kersi case (2011 (3) Mh.L.J. 564) are applicable.
Case Details
2015 LawText (BOM) (03) 154
Criminal Application (APL) No.124 of 2015
Mr. A.V. Gupta for the Applicants, Mr. A.K. Bangadkar, Addl. Public Prosecutor for the Respondent/State, Mr. R.J. Mirza, Advocate to assist the prosecution
Mohd. Munaf s/o. Mohd. Habib, Mohd. Ansar s/o. Mohd. Habib, Mohd. Irfan @ Kalu s/o. Mohd. Kasam, Mohd. Aamir s/o. Mohd. Azaam
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Nature of Litigation
Criminal application challenging the order of Additional Sessions Judge rejecting permission to file a video CD of a witness's interview for cross-examination under Section 145 of the Indian Evidence Act, 1872.
Remedy Sought
The applicants (accused) sought to file on record a CD of an interview given by PW-3 to a local news channel and to use it for cross-examination.
Filing Reason
The trial court rejected the application on the ground that Section 145 only permits cross-examination with reference to previous written statements, not oral statements.
Previous Decisions
The Additional Sessions Judge, Akola, in Sessions Trial No.144/2012, rejected the application filed on 9.10.2014.
Issues
Whether a video CD containing an oral statement of a witness can be used for cross-examination under Section 145 of the Indian Evidence Act, 1872.
Submissions/Arguments
The applicants argued that the trial court's order was perverse and ignored the law settled by the Supreme Court in N. Sri Rama Reddy v. Attorney-General for India, AIR 1971 SC 1162, and Havovi Kersi v. Kersi Gustad, 2011 (3) Mh.L.J. 564, which hold that previous oral statements recorded on tape can be used to contradict a witness under Section 145.
The respondent/State opposed the application, supporting the trial court's view.
Ratio Decidendi
Section 145 of the Indian Evidence Act, 1872 permits cross-examination of a witness with reference to previous statements made in writing or reduced into writing, and includes previous oral statements recorded on tape. The trial court erred in holding that only written statements are covered. The Supreme Court in N. Sri Rama Reddy v. Attorney-General for India, AIR 1971 SC 1162, and the Bombay High Court in Havovi Kersi v. Kersi Gustad, 2011 (3) Mh.L.J. 564, have held that previous oral statements recorded on tape can be used to contradict a witness under Section 145.
Judgment Excerpts
Learned Additional Sessions Judge rejected the application on the ground that oral statement of which a video C.D. had been prepared by the News Channel did not fall within the scope and ambit of Section 145 of the Indian Evidence Act, 1872 which permits cross-examination of the witness with reference to the previous written statement and not the oral statement.
The law settled by the Hon'ble Apex Court in the case of N. Sri Rama Reddy and others vs. The Attorney-General for India and others, reported in AIR 1971 SC 1162, which has been followed in the case of Havovi Kersi (supra) wherein it has been held that a previous oral statement recorded on tape can be used to contradict a witness under Section 145.
Procedural History
The applicants filed an application on 9.10.2014 in Sessions Trial No.144/2012 before the Additional Sessions Judge, Akola, seeking permission to file a CD of an interview given by PW-3 to a local news channel. The trial court rejected the application. The applicants then filed Criminal Application (APL) No.124 of 2015 before the Bombay High Court, Nagpur Bench, challenging the order. The High Court heard the matter on 9.3.2015 and allowed the application.
Acts & Sections
- Indian Evidence Act, 1872: 145
