Kerala HC Sets Aside Sessions Court Order Barring Use of Section 161 Statements to Contradict Witnesses in Cross-Examination
The Kerala High Court held that a Sessions Judge was wrong to bar defence counsel from using Section 161 CrPC statements to contradict prosecution witnesses during cross-examination, calling the restriction illegal and directing the recall of three witnesses.
The High Court of Kerala has set aside an order passed by the Additional Sessions Judge-VII, Thiruvananthapuram, which had refused to allow defence counsel to use statements recorded under Section 161 of the Code of Criminal Procedure to contradict prosecution witnesses during cross-examination. Justice A. Badharudeen, sitting singly, allowed the Criminal Miscellaneous Case filed under Section 528 of the Bharatiya Nagarik Suraksha Sanhita, 2023, and directed the Sessions Court to recall PWs 1 to 3 and permit their cross-examination using those previous statements. The Sessions Judge's reasoning, that Section 162 CrPC prohibited such use, was found to be a fundamental misreading of the law.
The Dispute Before the High Court
The underlying criminal case, S.C. No.1329 of 2014, arises from Crime No.37/2012 registered at Poovar Police Station, Thiruvananthapuram. The petitioners are accused Nos.1 to 4 and 6 to 8 in that case.
During the trial, when defence counsel attempted to use the Section 161 CrPC statements of PWs 1 to 3 to confront those witnesses with contradictions during cross-examination, the Sessions Judge disallowed the exercise. The Sessions Judge's stated reason was that the procedure was barred by Section 162 CrPC.
The petitioners challenged that order, dated 27 February 2026 in Crl.M.P. No.3 of 2026, before the High Court by filing Crl.M.C. No.2639 of 2026.
The Legal Issue: What Section 162 CrPC Actually Permits
The core question was whether Section 162 CrPC bars the use of a statement recorded by an Investigating Officer under Section 161 CrPC when that statement is deployed to contradict the maker of the statement during cross-examination.
The Sessions Judge had read Section 162 as a blanket prohibition. The High Court disagreed entirely. Justice Badharudeen set out the settled position: a statement recorded under Section 161 CrPC is not evidence by itself. Its use during trial is governed by Section 162 CrPC, and that use is limited, but the limitation is specific. Section 162 restricts the use of such statements as substantive evidence to prove a fact in issue. It does not prohibit their use to contradict a witness in the manner provided under Section 145 of the Indian Evidence Act, 1872.
The corresponding provision in the Bharatiya Sakshya Adhiniyam, 2023 is Section 148, and the High Court's directions are framed by reference to that provision.
How the Bench Reasoned
Justice Badharudeen found that the Sessions Judge had failed to understand what Section 162 CrPC intends and what the permissible use of Section 161 statements is. The judgment states that the Sessions Judge's reasons were “absolutely wrong and the same would not sustain in the eye of law.”
The High Court identified two distinct uses of a Section 161 statement and kept them separate. Using such a statement as evidence to establish a fact in issue is prohibited. Using it to contradict the witness who made it, during cross-examination, in the manner Section 145 of the Evidence Act prescribes, is expressly permitted. The Sessions Judge conflated the two.
The court went further and characterised the right to use previous statements for contradiction as an absolute right of the accused. The purpose, as the judgment explains, is to shake the veracity of the evidence spoken by the witness and to render it untrustworthy of credit. That is, the court observed, the main purpose of cross-examination itself.
Because the disallowance of this right rested on a legally untenable reading of Section 162 CrPC, the order was found to be illegal and liable to be set aside.
Directions Issued
The High Court allowed Crl.M.C. No.2639 of 2026 and issued the following directions to the Additional Sessions Judge-VII, Thiruvananthapuram:
PWs 1 to 3 are to be recalled. The petitioners' counsel is to be permitted to cross-examine them using their previous statements, in accordance with Section 148 of the Bharatiya Sakshya Adhiniyam, 2023. The Sessions Judge is directed to complete this exercise within three weeks from the date of receipt of a copy of the order. The petitioners are directed to co-operate with the court without fail. The Registry was directed to forward a copy of the order to the Sessions Court forthwith.
Outcome
The Criminal Miscellaneous Case was allowed on 19 May 2026. The order of the Additional Sessions Judge-VII, Thiruvananthapuram dated 27 February 2026 in Crl.M.P. No.3 of 2026 stands set aside. The trial is to resume with the recall of PWs 1 to 3 for cross-examination within three weeks.