JUDGMENT Vinod Prasad, J.
1. Central Bureau of Investigation has approached this Court under its inherent jurisdiction, under Section 482 Cr. P.C., with the prayer to quash the order-dated 5.10.05 passed by the Additional Sessions Judge, Ghaziabad in ST. No. 608 of 2005, C.B.I. v. Arun Kumar Kaushik and Ors., under Sections 302, 307, 323 I.P.C. P.S. C.B.I., SCB Lucknow By the impugned order, the trial court has rejected the application 19-Ka by which the public prosecutor C.B.I. wanted to cross-examine P.W. 2 S.K. Goyal without declaring him hostile under Section 162 Cr. P.C. in respect of his statement recorded under Section 161 Cr. P.C.
2. The factual matrix of the case is that Miss. Smita Bhaduri D/o Shri S.K. Bhaduri R/o Modipuram, Meerut was murdered on 14.1.2000 and In that incident one Mohit Tyagi S/o Shri R.K. Tyagi received injuries. The malefactors of the said incident were the police officers Arun Kumar Kaushik (Inspector), Bhagwan Sahai and Surendra Kumar (Constable), all posted at P.S. Daurala, District Meerut. The deceased has died due to firearm injury whereas Mohit Tyagi received injuries by physical assault. The F.I.R. of the said incident, initially, was registered as crime No. 14/2000 at P.S. Daurala which was subsequently transferred to C.B.I. for investigation vide notification dated 26.4.2000 issued by government of India and by government of U.P. notification dated 17.1.2000. In pursuance of the orders passed by both the governments, the C.B.I registered R.C. 2 (5/2000) with S/I.C./4 Lucknow Branch on 4.5.2000. The investigation culminated into a charge sheet filed in the court of Special Judicial Magistrate, C.B.I. Ghaziabad on 3.3.04 against the above named three police personnel. The case was committed to the Court of Sessions were the charges were framed against the above named accused persons under Sections 302, 307, 323/34 I.P.C. on 6.4.05. While P.W. 2 S.K. Goyal was being examined - in-chief, the public prosecutor C.B.I, filed an application before the trial court for cross examining P.W. 2 S.K. Goyal and contradict him with his previous statement recorded under Section 161 Cr. P.C. The copy of the said application, annexure No. 2 to the present application indicates that the aforesaid application was filed with following contents;
In The court of Additional Sessions Judge S.T. No. 608 of 2005 State v. Arun Kumar Kaushik and Ors.... Accd.
Humble petition on behalf of prosecution may it please your honour.
1. That the prosecution intends to draw the attention of the witness P.W. 2 S.K. Goyal with reference to his 161 Cr. P.C statement without declaring him hostile.
It is therefore prayed that permission may kindly he granted to draw the attention of the witness without declaring him hostile.
Spl. P.P. C.B.I.
7.9.05
3. The said application filed by C.B.I. was rejected by the Additional Sessions Judge/Special Judge C.B.I. Prevention of Corruption Act U.P. East, Ghaziabad vide his impugned order dated 5.10.05 annexure No. 1 to this application. Aggrieved by the aforesaid order, the C.B.I. has filed the present application, with the prayer of quashing the impugned order so that they can cross-examine P.W. 2 S.K Goyal without declaring him hostile
4. I have heard Sri G.S. Hajela learned Counsel for the C.B.I. at a great length and Sri Amarjeet Singh learned A.G.A. in opposition.
5. Sri Hajela, learned Counsel for the C.B.I. contended that under Section 162 Cr. P.C. the prosecution can cross-examine the witnesses after seeking permission from the court He contended that the impugned order passed by the trial court is wholly illegal in as much as for contradicting a witness only the permission of the court is required and it is not essential to declare the said witness hostile by the prosecution. He further contended that the reasons given by the trial court in rejecting the application is wholly illegal.
6. Sri Amarjeet Singh, learned A.G.A on the other hand contended that the order passed by the trial court is absolutely just proper and legal and does not require any interference by this Court and it must be countenanced and the present application being without any merit deserves to be dismissed.
7. For judging the correctness of the rival contentions canvassed at the bar, it is essential to have glimpse at a relevant provisions provided under the Cr.P.C. as well as under the Evidence Act. Chapter XII of the Cr. P.C. herein after referred to as the code titled as "INFORMATION TOF THE POLICE AND THEIR POWER TO INVESTIGATE" contains 25 Sections from Section 154 to 176, Out of these Section 161 of the code lays down that any police officer making an investigation may examine orally any person suppose to be acquainted with the facts and circumstances of the case in accordance with the general or special order issued by the State Government in this behalf. Sub-section 2 thereof cast a duty upon said witness to answer truly to all questions put to him by the said officer except those who tend to expose him to a criminal charge or to penalty or forfeiture. Sub-Section 3 of Section 161 Cr. P.C. is relevant for our purpose, which provides thus;
Section 161(1)....
Section (2)....
(3) The police officer may reduce into writing any statement made lo him in the course of an examination under this Section: and if he does so, he shall make seprate and true record of the statement of each such person whose statement he record.
8. Section 162 of the code provides thus;
162. Statements to police not to be signed: Use of statements in evidence-(1) No statement made by any person to a police officer in the course of an investigation under this Chapter, shall, if reduced to writing, be singed by the person making it; nor shall any such statement or any record thereof, whether in a police diary or otherwise, or any part of such statement or record, he used for any purpose, save as hereinafter provided, at any inquiry or trial in respect of any offence under investigation at the time when such statement was made:
provided that when any witness is called for the prosecution in such inquiry or trial whose statement has been reduced into writing as aforesaid, any part of his statement, if duly proved, may be used by the accused, and with the permission or the Court, by the prosecution, to contradict such witness in the manner provided by Section 145 of the Indian Evidence Act, 1872 (1 of 1872); and when any part of such statement is so used, any part thereof may also be used in the re-examination of such witness, but for the purpose only of explaining any matter referred to in his cross-examination.
(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.
Explanation-An omission to state a fact or circumstance in the statement referred to in Sub-section (1) may amount to contradiction if the same appears to he significant and otherwise relevant having regard to the context in which such omission occurs and whether any omission amounts to a contradiction in the particular context shall be a question of fact.
From the above quoted portions of the statute, it is clear that if any statement is recorded by the Investigating Officer, during the course of an investigation, then such a statement, if reduced in writing, can be used only for the purposes of contradicting the maker of the statement under Section 162 of the code, in accordance with Section 145 of the evidence Act. If any part of that statement is duly proved and if, the maker of the statement is contradicted in accordance with Section 145 Cr. P.C. then he can be re-examined for the purposes of explaining any matter culled out during his cross-examination. The said bar of using such statement only for contradicting a witness does not apply to a dying declaration for the obvious reason that the maker of the said statement is dead. It also does not apply to statement made under Section 27 of the evidence Act as it relates to the discovery of anything during the course of an investigation. The explanation attached with Section 162 of the code lays down as to what will amount to a contradiction, in a given factual context, in the statement given by a witness. For a clear-cut understanding of the provisions of 162 Cr. P.C. manner of examination of witness as is provided under the Indian Evidence Act has to be looked into. Indian Evidence Act 1872 under Chapter X title "OF THE EXAMINATION OF WITNESS" contains 32 Sections from Section 135 to Section 136 out of which presently in this case are concerned only with Sections 137, 138 and 139. Section 137 deals with the meaning of examination-in-chief, cross-examination and re-examination. Section 138 of the evidence Act is relevant for our purpose and it provides thus;
138. Order of examinations.-Witnesses shall be first examined-in-chief, then (if the adverse party so desires) cross-examined, then (if the party calling him so desires) re-examined.
The examination and cross-examination must relate to relevant facts, but the cross-examination need not be confined to the facts to which the witness testified on his examination-in-chief.
Direction of re-examination.-The re-examination shall be directed to the explanation of matters referred to In " cross-examination; and, if new matter is, by permission of the Court, introduced in re-examination, the adverse party may further cross-examine upon that matter.
9. It is thus clear that the witness is to be examined-in-chief first then cross-examined and then re-examined. Section 145 Evidence Act, which is relevant for proper understanding of the controversy at hand is also quoted below;
145. Cross-examination as to previous statements in writing-A witness may he cross-examined as to previous statements made by him in writing or reduced into writing, and relevant to mailers in question, without such writing being shown to him, or being proved; but, if it is intended to contradict him by the writing, his attention must, before the writing can be proved, be called to those parts of it which are to be used for the purpose of contradicting him.
10. From such a scheme of examination in witnesses it is, thus, clear Section 145 Evidence Act applies only after examination-in-chief as is provided under Section 138 of the evidence Act is over and that he can be cross-examined by the adverse party. Thus for cross examining a witness any party has to substitute it as an adverse party. Prosecution can be allowed to cross-examine only when it transform itself as an adverse party. Without such a legal character, of adverse party, the prosecution cannot be allowed to cross-examine its own witness.
11. Now adverting to Section 162 of the code, it is clear that when a witness is called by the prosecution whose statement has been reduced in writing during the course of an investigation, by an Investigating Officer, then any part of his statement recorded, may be used by the adverse party to contradict such witness from his previous statement in the manner provide under Section 145 Cr. P.C. This scheme does create any difficulty so far as accused is concerned, as it has already been pointed out that Section 145 Cr. P.C. relates with the cross-examination by an adverse party. The said statement can be utilized by the prosecution also to contradict the said witness but only in accordance with Section 145 of the evidence Act because the words used in statute are "by the prosecution to contradict such witness in the matter provided by Section 145 of the Indian Evidence Act 1872 (1 of 1872)". Thus, the prosecution can contradict a witness only in the manner provided by Section 145 of the Evidence Act by declaring itself as an adverse party and that can be done only when the prosecution disown his own witness and for that it has to declare the witness hostile. Section 145 of the Evidence Act comes into effect only when the examination-in-chief is closed. The right to cross-examine his own witness can be given to the prosecution only at that stage and not prior to it. This the prosecution can do only after examination-in-chief is closed by it. The prosecution cannot be allowed in between the continuation of examination-in-chief Section 145 of the Evidence Act word be wielded by the prosecution against the statutory provision. Thus, if the prosecution wants to cross-examine his own witness under Section 145 Cr. P.C. regarding his previous statements recorded under Section 161 of the code as is provided under Section 162 thereof then it has to close the examination-in-chief and closed itself as an adverse party. As soon as the prosecution closes the examination-in-chief and declares the witness hostile it gets a right to cross-examine his own witness as is provided under Section 145 Cr. P.C. It may be noted here that for contradicting his own witness under Section 162 of the code, under Section 145 Evidence Act the prosecution is required to obtain the permission of the Court in accordance with Section 162 of the code. For the said purpose declaring a witness hostile is essential without which the prosecution cannot become adverse party, which is the sine-qua-non for cross-examining his own witness. There is another aspect of the matter and that is if, the prosecution is allowed to cross examine his own witnesses even during the examination-in-chief then there will be nothing left for the accused to ask from that witness and this will given a very undue and unfair advantage to the prosecution to the deteriment of the accused. Such a trial will be unfair trial and, at the cost of justice, it cannot be permitted. Such a procedure is not contemplated under the scheme of Evidence Act This distinction is more perceptable if Section 157 of the Evidence Act is taken into consideration, which relates with corroboration of the testimony of a witness from his former statement, made before any authority legally competent to investigate the fact by the said witness. Section 162 Cr. P.C. does not laid down any bar so far as the said corroboration is concerned and no permission of the court is required for exercising power under Section 157 of the Evidence Act. Thus, from the discussions made above, it is clear, that the permission to cross-examine his own witness by the prosecution can be granted only when the examination-in-chief is closed and the prosecution becomes adverse party. In the light of such a scheme of the examination of witness, the contention of learned Counsel for the applicant C.B.I. that even during the examination-in-chief they have a right to cross-examine the witness in accordance with Section 145 of the Evidence Act, under 162 of the code cannot be accepted and has to be rejected. Declaration of a witness to be hostile is thus warranted, as the party who wants to cross-examine must declare itself to be an adverse party. Since 145 of the evidence Act is utilized to contradict a witness from his former statement, therefore, in common parlance terminology declaring the witness hostile "is used" though no such terminology is found either under the code or under the Evidence Act. Thus, if the prosecution is allowed to cross-examine his own witness even during the continuation of the examination-in-chief it will be against Section 138 of the Evidence Act and will also giving a latitude to the prosecution to put the leading question even during examination-in-chief which is not permissible under the law under Sections 141, 142, 143 of the Evidence Act and which such Act never contemplated.
12. Thus, to sum up the contention of learned Counsel for the C.B.I. does not stand retest of scrutiny of a legal proposition and are devoid of merit and substance and is thus rejected.
13. In this view of the matter, the impugned order does not suffer from any illegality and the present application being merit less deserves to be dismissed and I do order so.
14. This application is merit less and is dismissed.