STATE OF KERALA versus BABU AND ORS.

Citation: [1999] 2 S.C.R. 978 · Decided: 04-05-1999 · Supreme Court of India · Bench: G.B. PATTANAIK · Disposal: Dismissed

Judgment (excerpt)

A 
STATE OF KERALA 
v. 
BABU AND ORS. 
MAY 4, 1999 
B 
[G.B. PATTANAIK AND N. SANTOSH HEGDE, JJ.] 
Criminal Procedure Code, 1973-Sections 91(1), 161, 162, 172-Indian 
Evidence Act, 1872-Section 145-Sessions case-Whether Court can summon 
the case diary of a different case not pertaining to the one in hand-Held, 
C yes-Further held, the power to summon the case diary emanates not from 
Section 172 but from Section 91(1). 
The respondents-accused in a Sessions case filed an application under 
Section 172 of the Criminal Procedure Code for summoning a case diary in 
a different case for the purpose of contradicting the statement of a witness 
D and to impeach the credit of the witness in the Sessions case. The respondents 
also prayed for recalling the witness. The Sessions Judge allowed the 
application. Both the State and the brother of the victim challenged the order 
of the Sessions Court and the same dismissed by the High Court. It was held 
that there is no bar in law to summon the case diary of a case even other 
E than the one which is being tried, for the purpose of contradicting the 
evidence of the prosecution witnesses. 
On appeal before this Court, the State contended that the case diary 
sought to be summoned being a case diary not of the case which is being 
tried in the Sessions trial, under Section 172 Cr. P.C. it is impermissible 
F for the Court to summon-the case diary nor the statement recorded therein 
could be permitted to be used for contradicting a witness who is being 
examined in a trial arising out of a totally different case. The Respondents 
contended that any prior statement of a witness can be used for the purpose 
of contradicting a witness as provided for in Section 162 Cr. P.C. and Section 
145 of the Evidence Act and that in view of the fact that those provisions 
G having been enacted for the benefit of the accused a liberal construction 
should be given to the provisions of Section 172 of the Code. 
Dismissjng the appeal, the Court 
HELD : 1. On a reading of_Section 162 of the Code bearing in mind 
H the object of the said section and Section 145 of the Evidence Act, it is clear 
978 
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STATE OF KERALA v. BABU 
979 
that an accused in a criminal trial has the right to make use of the previous A 
statements of a witness including the statements recorded by the investigating 
agency during the course of an investigation for the purpose of establishing 
a contradiction in the evidence of a witness or to discredit the witness. 
[983-G] 
2. There is no prohibition in the Criminal Procedure Code against any B 
court from looking into the diary of a counter case or from using the diary 
of a counter case in the trial of anther case. But this does not mean that the 
right of the court to summon the case diary of another case is derived from 
Section 172 of the Code or by the application of principles of Section 172 
because ex facie Section 172 of the Code does not help the accused in 
making use of a case diary. Section 172 relates to summoning of the case C 
diary of a case which is under enquiry or trial only. [986-B-D] 
3. Section 172 does not contemplate summoning of the case diary for 
the purpose of assisting the accused to have a look at the previous statements 
of the witness for using it for his benefit, as contemplated in Section 162 
of the Code. The finding of the Courts below that the source of power to D 
summon the case diary of a case other than the one that is being tried 
emanates from Section 172 of the Code is incorrect. [985-D-F) 
Ahmed Mia & Ors. v. Emperor, AIR (1944) Cal. 243, distinguished. 
Khatri & Ors. v. State of Bihar & Ors., [1981] 2 SCC 493, referred E 
to. 
4. The finding of the High Court that a statement recorded by 
investigating officer in any case, which was under investigation, being a 
statement made under Section 161 of the Code, the same can be used for the 
limited purpose provided under Section 162 of the Code read with Section F 
145 of the Evidence Act, is affirmed. The very object of the enactment of 
Section 161 of the Code and Section 145 of the Evidence Act is to create a 
right in the accused to make use of the previous statements of the witnesses 
for the purpose of contradiction and for impeaching the credit of the witness. 
This right has not been taken away by Section 172 of the Code and there 
is no prohibition in regard to this right of the accused either under the Code G 
or under the Evidence Act. This right does not flow under Sec

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