PART – A
A brief of sudalaimani vs state – 2014-2-LW(Crl.) 372
In a case before the Hon’ble Madras High Court Division bench, an argument was advanced by a defence counsel to reduce the sentence on conviction based on the confession given to a police officer placing reliance on Mottai Thevar-Vs-State reported in 1951 SCC Online Mad 247. But, the Hon’ble Madras High Court division bench in Sudalaimani vs. State [2014 CTC 641] had differentiated the confession given to the police officer as “before and after investigation”, and further held that the confession to the police officer by the accused could be proved in favour of the accused only, if the confession was given to the police officer before an investigation begins [i.e., the confession which is in the nature of FIR], also Division Bench controlled the argument that, the confession given to the police officer after the investigation begun cannot be proved in favour of the accused by placing reliance on a Supreme Court judgment Aghnoo Nagesia vs. State of Bihar reported in AIR 1966 SC 119 [3 judge bench] in which the Hon’ble Supreme Court as follows:
“Thus, except as provided by s. 27 of the Evidence Act, a confession by an accused to a police officer is absolutely protected under s. 25 of the Evidence Act, and if it is made in the course of an investigation, it is also protected by s. 162 of the Code of Criminal Procedure”.
As already indicated, please note that the Hon’ble Supreme Court and the Madras High Court have used the word “confession” and provisions of section 162 crpc in juxtaposition. I wonder how!!!
What is meant by using the confessional statement before the appellate court in favour of the accused and where does it emanate from?
Before going into the discussion on this point what was drafted in section 25 Evidence Act is the word ‘proved’ and not the word ‘used’. Because an understanding of the word ‘proved’ is so important. Section 3 Indian Evidence Act, 1872 interpreted the word ‘proved’ as follows:
“Proved” – A fact is said to be proved when, after considering the matters before it, the court either believes it to exist, or considers its existence so probable that a prudent man ought, under the circumstances of the particular case, to act upon the supposition that it exists”.
What is “considering the matters before it” means, deposition of witnesses (facts read in evidence), answers to the Framing of charges, written statement, defence witnesses and materials and finally arguments advanced based on the questions and answers put to the witnesses.
What is meant by ‘proved’ in view of the judgment and Evidence Act?
Section 3 of the Indian Evidence Act enables a Court to employ only the standards of a prudent man in judging what is to be deemed to be proved according to law. And, Section 114 of the Evidence Act enables Courts to presume only that which accords with the ordinary course of events and human nature and not what would be an aberration from such a course. [Garib Singh and Ors. vs. State of Punjab (22.03.1972 – SC) – AIR 1973 SC 460].
Therefore, if a fact is said to be proved (as drafted under section 25 IEA) before the court, it must be done in the manner of standards of a prudent man as held in the judgment described above, meaning thereby, proof of facts by oral evidence (section 59 IEA) and that oral evidence must be direct (section 60 IEA). Suppose, if a particular fact requires a document, then it must be done as per sections 61 and 64 IEA.
What is meant by the ‘use’ of a statement?
If a document or statement was already proved before the court, then the contents of the documents can be ‘used’ by the parties as per sections 145, 155 (3) or 457 IEA. This means, the document must be proved first by the witness admitting the same as if he is the author/maker of that document, then the document is said to have been proved. Now the parties would take advantage of the document by ‘using’ the same by way of contradiction under section 145 IEA or for corroboration under section 157 IEA.
For example, if a statement recorded by the police can be proved by the witness by stating before the court that ‘ I gave a statement before the police’ then the statement is being proved but cannot be marked inasmuch as there is a bar under section 162 crpc, but this does not mean the witness proved the contents of the said document. Now, the defence counsel (one of the parties) would use the portion or portions from that previous statement of that witness for contradiction and omission as permitted by section 162 crpc. This is the use of documents. All this is happening before the trial court.
Why this is important here is for the reason, whenever the appellate advocates want to reduce the sentence of an offence convicted by the trial court would read the confessional part recorded by the I.O, DIRECTLY to the appellate court by interpreting the words ‘as against the accused’ found under section 25 IEA into ‘in favour of the accused’ and further misread the word ‘proved’ as ‘used’. In clear terms, the appellate lawyers reading the particular sentence/part in the confessional statement DIRECTLY before the appellate court/judge without that particular part/sentence having been proved before the trial court.
We may emphasize here, that the word ‘used’ was not used by Sir James Fitzjames Stephen while drafting section 25 of the Indian Evidence Act. So, the legal position is, that if a document was not proved in the trial court in witness stand, then it cannot be ‘used’ for any purpose in arguments before the trial court or before the appellate court, which is the basis of evidentiary jurisprudence.
Judgment on that point to impress the readers:
“para. 18. Thus, it becomes crystal clear that the defence cannot rely on nor can the court base its finding on a particular fact or issue on which the witness has not made any statement in his examination-in-chief and the defence has not cross examined him on the said aspect of the matter” [Gangabhavani vs. Rayapati Venkat Reddy and Ors. (04.09.2013 – SC) AIR 2013 SC 3681 following its previous judgments Laxmibai (Dead) Thr. L.Rs. and Anr. v. Bhagwantbuva (Dead) Thr. L.Rs – AIR 2013 SC 1204 (para. 31); Rohtash Kumar v. State of Haryana – JT 2013 (8) SC 181 Gian Chand and Ors. v. State of Haryana – JT 2013 (10) SC 515)].
Ok then, where does this practice come from? The practice of using the confession without proving the same before the appellate court emanated from Mottai Thevar-Vs-State, reported in 1951 SCC Online Mad 247.
How to use the confession statement in favour of the accused?
With the aforesaid principles, if the accused wants to use the confession in favour of him, he must first accept his crime while ‘framing the charge’ and conduct the trial for a lesser sentence. Now, coming back to the word ‘proved’. By reading section 3 (proved) of the Evidence Act along with the confession recorded by the Investigation Officer clearly shows that, if an accused of an offence wanted to admit his offence and further requested the court to reduce the impact of a sentence, then the accused must prove the confession in favour of him before the Trial court by reading the confessional part in evidence by cross-examining of Investigation Officer on that point. I may give two simple examples to that effect which are as follows:
Example no.1:
“You have recorded my confession as if I have cruelly done the crime. But, the fact is I have confessed to you that when he started the fight I defended myself and retaliated in which the ‘X’ died. When this happened two other persons ‘y’ and ‘z’ witnessed the incident. These facts though I have confessed, you did not write in the confession”. There after the accused shall prove the same by calling ‘Y’ and ‘Z’ in defence.
Example no.1 is one part of proving the confession ‘in favour’ of the accused.
Example no.2:
“During the confession, I have confessed to you that I had just retaliated against the ‘X’ when he first started a gruesome fight whereas I have defended myself is it not?”. Now the Investigation Officer would answer in positive.
Example no.2 is another part of proving the confession ‘in favour’ of the accused whereby section 25 Evidence Act did not bar these procedures. Here do not forget that section 25 IEA bars the confession from being used “as against the accused”.
Even after ‘proving’ a confession as aforesaid in favour of the accused before the trial court but the accused was convicted for a higher sentence to an offence, then as per the Mottai thevar’s case, there is no bar to ‘use’ (since the confessional part is already proved through I.O) the same before the appellate court. Without using this methodology, how come it is possible to use a document that too a confessional statement DIRECTLY by reading it in the appellate court? I leave it to the readers discretion to decide.
PART – B
Before going into the reasons and analysis, let us have a quick look at the basics of Evidence such as, what is confession and what is meant by the use of the same. Whether section 162 Cr.P.C prohibit the use of other provisions?
Section 162 crpc prohibits the use of other provisions
Please note that Section 162 of the Criminal Procedure Code (Cr.P.C) has precedence over other sections in that context, even if they appear in other Acts. This article discusses various judgments and propositions related to this matter.
Judgments to impress the readers:
- Under Section 162, Cr. PC only witnesses on behalf of the prosecution could be contradicted by reference to their statements made to the police, and not court witnesses or defence witnesses. Even so, in the circumstances of this case, his evidence, which is more or less similar to the evidence of P.Ws. 5 to 7 cannot be accepted [Shakila Khader and Ors. vs. Nausheer Cama and Ors. (10.03.1975 – SC) – AIR 1975 SC 1324].
- The section was, therefore, conceived in an attempt to find a happy via media, namely, while it enacts an absolute bar against the statement made before a police officer being used for any purpose whatsoever, it enables the accused to rely upon it for a limited purpose of contradicting a witness in the manner provided by s. 145 of the Evidence Act by drawing his attention to parts of the statement intended for contradiction. It cannot be used for corroboration of a prosecution or a defence witness or even a Court witness. Nor can it be used for contradicting a defence or a Court witness. Shortly stated, there is a general bar against its use subject to a limited exception in the interest of the accused, and the exception cannot obviously be used to cross the bar [TAHSILDAR SINGH AND ANOTHER vs. THE STATE OF U.P – AIR 1959 SC 1012].
What is meant by confession?
As usual, what is a confession? A confession must either admit in terms the offence or at any rate substantially all the facts which constitute the offence. This is the extract of the celebrated judgement Pakkala Narayana Swami Vs King Emperor [AIR 1939 PC 47] relying upon by courts over decades.
Okay! What is mean by ‘use’ of confession?
As we discussed earlier in Part-A we have to say ‘proof’ of confession, instead of ‘use’ of confession. Nevertheless, if the accused decides to plead guilty over the offence (not under section 313 Cr.P.C), he may (after proving the same as discussed earlier) read over to the judge, by admitting the favourable portion in the confession recorded by the I.O featuring sudden provocation, private defence e.t.c..
In the Sudalaimani case, the Hon’ble Madras High Court Division Bench referred Aghnoo Nagesia vs. State of Bihar, wherein it was held that if an accused person voluntarily gives information that leads to an FIR being registered against him, then that information can be used to his advantage/favour. However, if someone else registers the FIR and the investigation has already begun, then any confession made by the accused to the I.O cannot be used in his favour.
The core question involved in this article
It is important to note that in this article, the Madras High Court has primarily depended on a solitary sentence from Aghnoo Nagesia’s case (supra) that the words of s. 162 are wide enough to include a confession made to a police officer in the course of an investigation which in my opinion, and for the following reasons was wrong and unsustainable.
Part – C
Questions framed to disprove sudalaimani case
1. If an accused gives information to the police regarding an offence done by himself would amounts to confession or FIR?
2. Whether the accused could be called upon and reduced his statement under section 161 Cr.P.C? or whether ‘any person’ includes accused”
3. Last but the most important – Would section 25 Evidence Act (confession) and section 162 Cr.P.C be read in juxtaposition?
I am briefing the above three points to the readers and the readers may decide the rest.
Question no.1 [If an accused gives information regarding an offence done by himself to the police would amount to confession or FIR?]
As per Bheru Singh vs. State of Rajasthan – 1994(1) Crimes 630(SC), where the accused himself lodges the First Information Report, the fact of his giving information is also admissible under section 8 (to the extent that it is non-confessional) of IEA and relevant under section 21 of the Indian Evidence Act further, the Hon’ble Supreme Court has held that confessional part cannot be used at all against him in view of section 25 of the Evidence Act. The relevant portion is as follows:
“17. Where the first information report is given by an accused himself to a police officer and amounts to a confessional statement, proof of the confession is prohibited by Section 25 of the Evidence Act. No part of the confessional statement can be proved or received in evidence, except to the extent it is permitted by Section 27 of the Evidence Act. The first information report recorded under Section 154 CrPC is not a substantive piece of evidence. It may be used to corroborate the informant under Section 157 of the Evidence Act or to contradict him under Section 145 of the Evidence Act in case the informant appears as a witness at the trial. Where the accused himself lodges the first information report, the fact of his giving the information to the police is admissible against him as evidence of his conduct under Section 8 of the Evidence Act and to the extent it is non-confessional in nature, it would also be relevant under Section 21 of the Evidence Act but the confessional part of the first information report by the accused to the police officer cannot be used at all against him in view of the ban of Section 25 of the Evidence Act”.
[also see Nisar Ali vs. The State of U.P – AIR 1957 SC 366(1); Faddi vs. The State of Madhya Pradesh – AIR 1964 SC 1850; Brajendrasingh v. State of M.P – AIR 2012 1552(1)= 2012 (4) SCC 289].
In particular, Supreme Court in Kanda Padayachi alias Kandaswamy Versus State of Tamil Nadu reported in 1971 (2) SCC 641 (SC – 3 Judge Bench) after considering Faddi’s case cited supra (and indeed quoting Agnoo Nagesia’s case) in its unequivocal terms has held that the information given by the accused is not a ‘confession’ but an ‘admission’ only, and the relevant paragraph is reproduced as follows:
“Appellant filed a first information report on the basis of which the dead body of his step son was recovered and three persons were arrested. As a result of the investigation, however, the appellant was arrested and was sent up for trial which resulted in his conviction and a sentence of death. In an appeal before this Court, he contended that the first information report ought not to have been admitted by reason of Section 25 of the Evidence Act and Section 162 of the Criminal Procedure Code. The contention was rejected on the ground that neither of the two provisions barred the admissibility of the first information report as that report was only an admission by the appellant of certain facts which had a bearing on the question as to how and by whom the murder was committed and whether the statement of the appellant in the Court denying the evidence of certain prosecution witnesses was correct or not. Such admissions were admissible under Section 21 of the Evidence Act and as such could be proved against the accused”.
What was decided in Sudalaimani’s case is that if an accused himself lodges information which is confessional it still cannot be proved against the accused as per section 25 of Evidence Act but can be proved in favour of him as established in Mottai thevar’s case. But having an intense reading of the above paragraph of the Hon’ble Supreme Court, it may be readily agreed that the FIR lodged by the accused, though facts incriminating, could be proved against the accused which directly contests and militates against the Sudalaimani’s case.
So, the question that arises is whether the above concept of law has been discussed in the sudalaimani vs state (at least to the extent of “binding or not”). The answer is ‘negative’. But, failing to consider the above precedents in “sudalaimani” on the first hand would seek to re-evaluate its correctness.
Question no.2 [Whether the accused could be called upon and reduced his statement under section 161 Cr.P.C?]
To Answer question no 2, it is necessary to analyze sections 160, 161 and 162 Cr.P.C. In these sections is there any possibility to summon and record the statement of the accused of an offence by the investigation officer during the investigation? The answer is absolute ‘NO’:
Whether ‘any person’ under sections 160, 161 & 162 Cr.P.C includes accused? – NO.
By reading the Hon’ble Supreme Court Judgment State v. N.M.T. Joy immaculate reported in AIR 2004 SC 2282= 2004 (3) CTC 138 it may be learned that persons who have been called as witnesses acquainted with the facts under section 160 cr.p.c can give a statement to the Investigation Officer under section 161 cr.p.c and only those statements are hit under section 162 cr.p.c. Otherwise stated, the words “any person” under the sections mean and include only prosecution witnesses and not the accused. Thus, the possibility of requiring the attendance of the accused under section 160 cr.p.c by the Investigation Officer, reducing his statement under section 161 and using the same as stipulated in section 162 Cr.P.C in Court is being denied and impracticable. Hence, the only statement that the accused can give to the Police during the investigation will be a confession which is hit only under section 25 of the Evidence Act and not under 162 Cr.P.C if we consider in the light of the Joy Immaculate’s case.
Substantiating Joy Immaculate’s case
The words ‘any person’ drafted under sections 160, 161 & 162 crpc is speaking of witnesses and prosecution witnesses only. Whoever has diverging views as such ‘any person’ means and includes the accused would change their view after reading the proviso of section 162 Cr.P.C. For that, we have to understand the proviso of section 162 Cr.P.C as a layman.
It is rudimentary, that the proviso to Section 162 Cr.P.C speaks about witnesses and only prosecution witnesses which is clear by reading the proviso which is reduced as follows:
“section 162(1) Cr.P.C …. PROVIDED that when any witness is called for the prosecution in such inquiry or trial whose statement has been reduced into writing as aforesaid“. (here aforesaid means under sections 160 & 161 Cr.P.C)
Even if we read the proviso to section 162 (1) Cr.P.C as a layman we cannot say that the Investigation Officer would record the statement of the accused person under section 161 Cr.P.C since the words ‘any person’ denotes those persons who are acquainted with the facts of the case. Ex. If 4 persons are summoned and three of them are acquainted with the facts of the investigation then the I.O could reduce those three persons statements in writing and hence the words ‘any person’ do not include the accused. This means the proviso only targets the prosecution witness who are acquainted with the facts and not the one who is facing an investigation.
Despite the above, the proviso also used the word ‘accused’ as such the draftsmen differentiated the witness and accused in the same proviso. The proviso to section 162 Cr.P.C itself clarifies the position being self-explanatory. Further, if we just deviate from section 162 Cr.P.C and read section 145 Evidence Act, it is too clear that this section deals with ‘witness’.
If there are two judgments of equal bench directly contradicts each other which one should be followed is no longer res Integra as Hon’ble Supreme Court has held in Union of India vs. Alok Kumar – AIR 2010 SC 2735 employing the legal maxim “Judicia posteriora sunt in lege fortiori” that later judgment shall be followed [also see Santhamani vs S.Saradamani – 2013 (2) CTC 641].
Hence, the words ‘any person’ do not include the accused. This is the correct proposition of law.
Question 2.2: But is it correct to infer that sub-section (2) of section 162 Cr.P.C implies the proposition as if the statement recorded from the accused by the investigation officer would not affect the discovery of fact made under section 27 of the Evidence Act because only the discovery from accused could be read in evidence as per section 27 IEA?
The above question will be answered shortly in question no.3.
Question no.3: Comparing Section 162 Cr.P.C with Section 25 I.E.A in juxtaposition and its impact
If, Sudalaimani vs. State 2014 CTC 641 had not been decided by comparing “STATEMENT” (section 162 Cr.P.C) with “CONFESSION” (section 25 Indian Evidence Act) in juxtaposition would the effect be different? – Yes, in my opinion, the Division Bench “dehors” could have possibly identified that Section 162 Cr.P.C (“STATEMENT”) overrides section 25 Indian Evidence Act (CONFESSION) since section 162 Cr.P.C contains specific and special evidentiary value than the provisions of Indian Evidence Act. In simple words, the logic of using section 162 Cr.P.C is misconstrued by judges having thought that these sections (section 162 Cr.P.C and section 25 Evidence Act) would co-exist.
Before going any further, it is imperative to recall the legal principle established by the Hon’ble Supreme Court regarding the admissibility of evidence in judicial proceedings.
“para. 11. When a question of the admissibility of evidence before an Indian court arises, it has to be determined with reference to the provisions of the Evidence Act. Alternatively, the question may be determined under a special enactment, which may either make such evidence admissible, or render it inadmissible [State of Maharashtra vs. Kamal Ahmed Mohammed Vakil Ansari & Ors – AIR 2013 SC 1441]”.
Value of the word ‘also’ used in judgments in reference to the admissibility of evidence
It is a settled legal point that the statement of witnesses given during the investigation before the Investigation Officer would also come under section 157 I.E.A. But, section 162 Cr.P.C is acting as a rider which bans the use of such statements for corroboration, inasmuch as, a special Act will readily prevail over the general Act as per Kamal Ahmed Mohammed Vakil Ansari (supra). If the same analogy applies to the current scenario, it is manifest that section 162 Cr.P.C (cannot be used for any purpose except for the limited purpose of section 145 I.E.A) will override section 25 Evidence Act (confession).
Answer to the question 2.2 regarding section 162 (2) cr.p.c and section 27 Evidence Act in layman’s view
what is sub-section (2) of section 162 Cr.P.C? It is reproduced as follows:
“(2) Nothing in this section shall be deemed to apply to any statement falling within the provisions of clause (1) of section 32 of the Indian Evidence Act, 1872 (1 of 1872), or to affect the provisions of section 27 of that Act”.
As we have already seen that Proviso to section 162 (1) Cr.P.C speaks of witnesses and not the accused from a layman’s angle. We have to read sub-section (2) of section 162 Cr.P.C also in the same angle which means section 162 (2) Cr.P.C also deals with witnesses and not the accused. How? Let us explain in the following layman’s angle:
Section 162 (2) crpc deals with two different parts. The first part is if a person who is acquainted with the facts of the case (let us say the victim) stated under section 161 cr.p.c during the investigation to the I.O later on dies or unable to trace, then, the bar under section 162 Cr.P.C does not apply to section 32(1) Evidence Act. In simple words ordinarily, section 162 crpc overrides other provisions including section 32(1) IEA if there is no sub-section (2) of section 162 cr.p.c was drafted. Hence, the application (overriding effect) of section 162 crpc is being removed by drafting sub-section (2) of section 162 cr.p.c. By reading section 162(2) crpc clarifies the position that a prosecution witness whose statement had been reduced into writing under section 161 crpc will be applicable as a ‘dying declaration’ of such prosecution witnesses because section 162(2) crpc removes the bar of overriding effect of section 162 crpc over section 32(1) IEA.
The following judgments are put forth to the readers to appreciate the proposition:
- “The law on the issue can be summarised to the effect that law does not provide who can record a dying declaration, nor is there any prescribed form, format, or procedure for the same”[Mafabhai Nagarbhai Raval v. State of Gujarat – AIR 1992 SC 2186; Laxmi v. Om Prakash & Ors – AIR 2001 SC 2383; Govindappa & Ors. v. State of Karnataka – (2010) 6 SCC 533 followed in Kaliya Vs. State of Madhya Pradesh – (2013) 9 SCALE 661=(2013) 10 SCC 758].
- Prosecution can exhibit the statement recorded under section 161 Cr.P.C by the Investigation Officer in the court directly if the maker/author of the statement dies subsequently. In simple words if a statement given by the witness to the Investigation Officer or to the police officer other than the Magistrate died subsequently, there is no legal bar to consider the his statement as ‘dying declaration’ [RazikNaina Mohammed vs. State – 2013(1) CLT (Cri) 162 (Mad-DB); N.Chellaiah vs. State – (2013)2 MLJ (Cri) 680 (Mad-DB); Santhi v. State – 2008 (2) MWN (Cri) 46 (DB); Paras Yadav v. State of Bihar – 1999 (2) SC 126; Balbir Singh v. State of Punjab – 2006 (12) SCC 283 reiterated in Salim GulabPathan v. State of Maharashtra – 2012 (3) Crimes 281 (SC); Sandeep v. State of U.P – 2012 (3) Supreme 497; Pradeep Bisoi @ Ranjit Bisoi vs. State of Odisha – 2019 (1) MWN (cri) 4 (SC)]
Though the aforesaid first aspect of section 162(2) crpc is not the subject matter, but so closely related to the next part, meaning, without understanding the first part we cannot understand the second part.
Now the crucial second part of section 162 (2) crpc. Let us once again see the question 2.2:
Question 2.2: But is it correct to infer that sub-section (2) of section 162 Cr.P.C implies the proposition as if the statement recorded from the accused by the investigation officer would not affect the discovery of fact made under section 27 of the Evidence Act because only the discovery from accused could be read in evidence as per section 27 IEA?
Since ‘any person’ means and includes only a witness who is acquainted with the facts and the first part of the sections deals with the witness then how come the code deviates from the second part to the accused? To understand the second part immensely let us see an example:
Example problem: X comes to the police station and says that I saw A1, A2 and A3 run away from a place (hereafter SOC) doubting that ‘X’ goes to the SOC and saw ‘Y’ was lying in the SOC unconsciously bleeding heavily in his head and other body parts. So, ‘X’ admitted ‘Y’ in the nearby government hospital, rushed to the nearest police station and informed about the same. However, ‘X’ informed the I.O that he did not witness the crime but he saw PW1, PW2, PW3, and PW4 were standing in the SOC before ‘X’ reached there. During the investigation, the I.O summoned PW1,2,3 and 4 to give statement about their presence at the SOC. Upon summoning, PW1 who came on the first day to the I.O stated that he did not know anything about the crime perpetrators, since he had just come to the SOC lately after the crime was committed, further when questioned about the weapon by the I.O PW.1 categorically stated that he also did not know anything about the weapon used or what happened to the weapon to the crime further left to his house from the police station. Thereafter, on the next day, PW2,3,4 are summoned by the I.O since they are from the same family and all of them stated to the I.O that they were present at the SOC witnessing the crime done by A1, A2 and A3 and further informed that PW1 was also witnessed the crime with them and after the crime when A1, A2 and A3 have handed over the weapon used for the crime to the PW.1 and ran away.
Having received this information from the witnesses, I.O started chasing PW.1 and finally arrested PW.1 at the bus stand. At this point, PW.1 became an accused and started giving confession in which he disclosed the I.O that he hid the weapon used for the crime in a particular address and upon PW1’s (now accused) disclosure statement under section 27 IEA, I.O seized all the Material Objects/weapons used for the crime and submitted to the Jurisdictional magistrate.
Now imagine if there is no second part in sub-section (2) of section 162 (2) Cr.P.C, what would happen? The answer is simple, the previous statement given by PW1’s as witness to the I.O before arrest will prevail i.e., his statement as a witness as if “he did not know about the crime and the weapon stood still”. The subsequent disclosure statement after the arrest is of no use and cannot be proved in the trial inasmuch section 162 crpc would readily override section 27 IEA.
To avoid this confusion, the draftsmen have drafted the second part in sub-section (2) of section 162 crpc. In other words, if there are two statements of a person is available before the court, one as a witness statement and the other as disclosure statement, then the trial court need not set aside the disclosure statement quoting section 162 crpc inasmuch section 162(2) crpc says that the statement of the accused as a witness as if he does not know anything about the weapon does not affect the disclosure statement of the accused.
in simple words, section 162 (2) crpc states that if a person who is a witness at the beginning of the investigation, later on, turned in to the accused (accomplice/approver) and gives a disclosure statement, the statement already given by him regarding the weapon to the Investigation Officer under section 162 Cr.P.C does not apply as a bar to section 27 Evidence Act
Explaining the use and scope of section 162 Cr.P.C, the Supreme Court has specifically emphasized in DANDU LAKSHMI REDDY vs. STATE OF A.P reported in (1999) 5 SCALE 118 that what is interdicted by the Parliament in direct terms cannot be obviated in any indirect manner is the answer to the core question of this article.
My senior taught me to read the section first, separate the section limb to limb to understand it properly, and master the section, if you still have doubts try other options.
Judgments may be binding, but not necessarily be correct.
Answering the core question, In the aforesaid scenario, if we read sub-section 2 to section162 Cr.P.C that nothing in this section shall be deemed to apply to any statement falling within the provisions of clause (1) of section 32 of the Indian Evidence Act, 1872 (1 of 1872 ), or to affect the provisions of section 27 of that Act clears our doubt that this section shall not protect the provisions of section 27 to make use in the court (which means section 162(2) does not bar the use of disclosure statement before the court) but readily affects section 25 Evidence Act i.e., confessional part. In other words, section 162(2) Cr.P.C expressly says it does not affect only section 27 Evidence Act, but will impliedly affect section 25 Evidence Act (confession) as this section impliedly affects sections 9 & 157 Evidence Act, sections 174. and 172 Cr.P.C e.t.c. [PERIASAMI AND ANOTHER vs STATE OF T.N – (1997) SCC(Cri) 121= AIR 2001 SUPREME COURT 2503 – Mahabir Singh v. State of Haryana; AIR 1999 SC 1969 – Ramprasad Vs. State of Maharashtra followed in GAJULA SURYA PRAKASARAO vs. STATE OF A.P – (2009) 13 SCALE 656=(2010) 1 SCC 88=(2010) 1 SCC(Cri) 455].
But if we take the current proposition as laid down in sudalaimani’s case letter and spirit then it is the judgment which cut down all the opportunities by using one single word ‘also’. Hence, for the foregoing reasons, it is required to overrule sudalaimani vs. state what was not correctly decided neglecting the legal principles.
Authored by: Ramprakash Rajagopal [ms. 1957/2005], Advocate, Tamilnadu.
