Content Provider | Supreme Court of India |
---|---|
e-ISSN | 30484839 |
Language | English |
Access Restriction | NDLI |
Subject Keyword | Evidence Act (1 of 1872) secs. 145 157-Criminal Procedure |
Content Type | Text |
Resource Type | Law Judgement |
Jurisdiction | India |
Act(s) Referred | Code of Criminal Procedure, 1898 (5 of 1898) Indian Evidence Act, 1872 (1 of 1872) |
Case Type | Appeal |
Court | Supreme Court of India |
Disposal Nature | Appeal Dismissed |
Headnote | Evidence Act (1 of 1872), secs. 145, 157-Criminal Procedure Code, 1898, secs. 208, 288, 537, 540-Criminal trial-Examination of Witness not examined before Committing Magistrate-Legality-'- Statements before Committing Magistrate-Admissibility-Statement not denied-Use as corroborative evidence-Certificate of magistrate that deposition was read over-Presumption of correctness-Practice of examining Committing Magistrate, impropriety of. The Sessions Court has power to examine witnesses who were not examined before the Committing Magistrate because 0£ -sec. 540, Criminal Procedure Code, and if the witness is treated .as a prosecution witness and examined by the prosecuting counsel instead of by the court, that at best would be an irregularity .curable by sec. 537 of the Code. The proper time to object to :Such a procedure would be at the trial itself. Shel' Bahadur v. The Crown (I.LR. 15 Lah. 331) and Queen Empress v. G. W. Hayfield (I.L.R. 14 All. 212) distinguished S. S. Jhabwala v. Emperor (A.LR. 1933 All. 690) and Mussamat Niamat v. The c,.own. (I.L.R. 17 All. 176) approved. Emperor v. Channing Amold (B Cr. L.j. 877) referred to.Resort to sec. 145 of the Evidence Act is necessary only if a witness denies that he made the former statement. In that e'vent it would be necessary to prove that he did and if the former statement was reduccd to writing, then sec, 145 requires that his attention must be drawn to those parts which are to be used for contradiction. But that position does not arise when the witness admits the former statement. In such a case all that is necessary is to look to the former statement of which ne further proof is necessary because of the admission that it was made. The former statement cannot be used as substantive evidence unless sec. 288, Criminal Procedure Code, is called in ai& but ,even without sec. 288 the court would be entitled to say, basing on the evidence-in-chief which is the substantive evidence, that what the witness said to the police or the Committing Magistrate, is the true version, not because those statements form substantive evidence, but because they tally with the evidence-in-chief which is substantive. If a . former statement can be brought in under sec. 157 of the Evidence Act, it can be transmuted into substantive evidence by the application of sec. 288 of the Criminal Procedure Code. Tara Singh v. The State [1951] S.C.R. 729 distinguished. If the certificate of the Committing Magistrate endorsed on "the deposition sheet states that the deposition was read out to the witness and the witness admitted it to be correct the court is bound to accept this as correct under sec. 80 of the Evidence Act until it is proved to be untrue.It is not necessary nor desirable to examine the committing Magistrate to prove the truth of his certificate Kashmera Singh v. The State of Madhya Pradesh [1952] (S.C.R) 526 followed.Even if it be true that the deposition was not read over, that would only amount to a curable irregularity and in the absence ·of prejudice which must be disclosed in an affidavit which shows exactly where the record departs from what the witness actually :said, the objection cannot be sustained . |
Judge | Hon'ble Mr. Justice Vivian Bose |
Neutral Citation | 1952 INSC 25 |
Petitioner | Bhagwan Singh |
Respondent | The State Of Punjab |
SCR | [1952] 1 S.C.R. 812 |
Judgement Date | 1952-04-30 |
Case Number | 12 |
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