Case Note & Summary
The petitioner, Raju Haridas Khelkar, was prosecuted for offences under Sections 354 and 506 of the Indian Penal Code before the Magistrate. After the trial concluded, the Magistrate found that charges under Sections 7 and 8 of the Protection of Children from Sexual Offences Act, 2012 were also required. The accused was given the option for a de novo trial, which he exercised by filing a pursis on 21 January 2017. The case was then committed to the Sessions Court. During the trial before the Special Court, the accused sought permission to refer to the testimonies of witnesses recorded before the Committal Court for the purpose of contradiction under Section 145 of the Indian Evidence Act, 1872. The Additional Sessions Judge, Chandrapur, by order dated 9 March 2017 (Exhibit 19), rejected the application, holding that witnesses can only be contradicted using statements recorded by the police under Section 161 of the Criminal Procedure Code, and that the prior statements recorded by the Committal Court were washed out due to the de novo trial. The accused challenged this order by way of a criminal writ petition before the Bombay High Court. The High Court framed the question whether, upon exercise of the option for de novo trial, the testimonies recorded before the Committal Court can be used to contradict witnesses before the Sessions Court. The court referred to its earlier decision in Emperor v. Pranshankar Shambhuram Raval, AIR 1950 Bombay 14, which held that in a de novo trial, the whole evidence of a witness who is resummoned is to be recorded afresh, but the previous deposition can be used to contradict the witness under Section 145 of the Evidence Act. The court reasoned that the de novo trial does not wash out the prior testimonies; they remain available for contradiction. The High Court allowed the petition, set aside the impugned order, and directed the Special Court to permit the accused to use the testimonies recorded before the Committal Court for contradiction purposes. The court also made the rule absolute.
Headnote
A) Criminal Procedure - De Novo Trial - Use of Prior Testimonies for Contradiction - Section 145 Indian Evidence Act, 1872 - The accused, prosecuted under Sections 354 and 506 IPC, opted for de novo trial after Magistrate found charges under POCSO Act were required. The Sessions Court rejected the accused's application to use pre-committal witness testimonies for contradiction. The High Court held that de novo trial does not wash out prior testimonies; they can be used under Section 145 of the Evidence Act to contradict witnesses. The court relied on Emperor v. Pranshankar Shambhuram Raval, AIR 1950 Bombay 14, and set aside the impugned order. (Paras 2-6)
Issue of Consideration
Whether, upon exercise of option by accused for de novo trial, the testimonies of witnesses recorded before the Committal Court can be used under Section 145 of the Indian Evidence Act, 1872 to contradict the witnesses before the Sessions Court.
Final Decision
The High Court allowed the petition, set aside the impugned order dated 09.03.2017, and directed the Special Court to permit the accused to use the testimonies recorded before the Committal Court for the purpose of contradiction under Section 145 of the Indian Evidence Act, 1872. Rule made absolute.
Law Points
- Section 145 of Indian Evidence Act
- 1872 permits contradiction of witnesses using previous statements recorded by Magistrate before committal
- even in de novo trial
- de novo trial does not wash out prior testimonies
- option for de novo trial under Section 323 CrPC does not extinguish right to cross-examine using prior statements
