ashishvidyarthi (engineer) 29 October 2013

Crpc161witness vs crpc244 witness

Esteemed lawyers kindly help me in following query: In a 498A case instituted under crpc156(3) can the prosecution present a witness for evidence under crpc244, who didn't give crpc161 statement,while not presenting the witness who gave crpc161 statements? If yes then can the accused ask(or compell) for cross examination of witness who gave crpc161 statement after charges are framed(in reference to crpc246).

(There are material contradictions between wife's 161 statements and this witness's 161 statements

Kindly give relevant sections of crpc/evidence act or any case law. regards ASHISH

Reply Follow

7 Replies

T. Kalaiselvan, Advocate (Advocate) 30 October 2013

Ashish vidyarthi,

I think you are getting too confused by mixing up all the sections together. The section 244(2) of Cr.P.C. states that a magistrate on the application of the prosecution, issue a summon to any of its witnesses directing him to attend or to produce any document or other thing. While Sec 246(4) states that the if the accused wishes to cross examine any, and, if so, which of the witnesses of the prosecution whose evidence has been taken. Sec 246(5) states that if the accused says he does so wish, the witnesses named by him shall be recalled and after cross examination and reexamination (if any), they shall be discharged. Sec 246(6) states that the evidence of any remaining witnesses for the prosecution shall next be taken. Sec 247 states that the accused shall be then be called upon to enter upon his defence and produce his evidence and the provisions of Sec 243 shall apply to the case.

The contradictions between the 161 statement and other evidences of the witnesses can be highlighted during final argument of the case. Hope this answers your question.

1 Like

ashishvidyarthi (engineer) 30 October 2013

Originally posted by : Kalaiselvan, Advocate Vellore

Ashish vidyarthi,

I think you are getting too confused by mixing up all the sections together. The section 244(2) of Cr.P.C. states that a magistrate on the application of the prosecution, issue a summon to any of its witnesses directing him to attend or to produce any document or other thing. While Sec 246(4) states that the if the accused wishes to cross examine any, and, if so, which of the witnesses of the prosecution whose evidence has been taken. Sec 246(5) states that if the accused says he does so wish, the witnesses named by him shall be recalled and after cross examination and reexamination (if any), they shall be discharged. Sec 246(6) states that the evidence of any remaining witnesses for the prosecution shall next be taken. Sec 247 states that the accused shall be then be called upon to enter upon his defence and produce his evidence and the provisions of Sec 243 shall apply to the case.

The contradictions between the 161 statement and other evidences of the witnesses can be highlighted during final argument of the case. Hope this answers your question.

Kalaiselvan sir thanks lot for your reply.I think I have got various sections right but may beI erred in explaining the query.I was referring to section 244(1)

244 (1) " When, in any warrant-case instituted otherwise than on a police report, the accused appears or is brought before a Magistrate, the Magistrate shall proceed to hear the prosecution and take all such evidence as may be produced in support of the prosecution."

By section 246,I was referring to246(1)

"246. Procedure where accused is not discharged

(1) If, when such evidence has been taken, or at any previous stage of the case, the Magistrate is of opinion that there is ground r presuming that the accused has committed an offence triabie under this Chapter,wilich such Magistrate is competent to try and which, in his opinion, could be adeqtiateiv punished by him, he shall frame in writing a charge against the accused."

I will try to explain my query more clearly without talking of any section.

I am asking about a 498A case filed as complaint to magistrate under crpc190(1),which was sent for police investigation under 156(3).

CRPC161 statements were taken of wife and her mother only.There are material contradictions between the two statements recorded by IO under crpc161.

My query is that

A)can the prosecution present as its witness wife's sister whose crpc161 statement was not taken ,while not presenting wife's mother as witness? If yes under what section?

B) can accused compell wife's mother to undergo cross examination? If yes at what stage and under which section?Accused wants to be tried.

You are requested to kindly elaborate again in light of these clarifications.

Thanks and

regards ASHISH

T. Kalaiselvan, Advocate (Advocate) 31 October 2013

Mr. Aashish Vidhyarthi,

You are repeating the questions for which I have appropriately answered, however, I once again ask you to go through my previous answer, The answer for your question (a) is 244(2) and for (b) is 247. If your MIL was not examined by the prosecution despite she is in the list of prosecution witnesses, you may u/s 247 petition her as a defence witness, let she adduce anything, you may cross examine her either on the basis of her 161 statement or as per the circumstances of your case.

ashoksrivastava (scientist) 31 October 2013

@ ASHISH my reply for your query A and B is as follows

A)can the prosecution present as its witness wife's sister whose crpc161 statement was not taken ,while not presenting wife's mother as witness? If yes under what section?

REPLY no they cannot

All the evidence and list of witnesses prosecution want to rely upon is fixed by what is presented to IO for investigation under 156(3).New evidence or addition/deletion of witnesses is not allowed at a later stage( say at stage of prosecution evidence under crpc244).

Other wise whole exercise of 156(3) will be rendered meaningless.This is guaranteed by crpc173 subsection 5(a) and5(b)

"173.Report of police officer on completion of investigation.- (5) When such report is in respect of a case to which section 170 applies, the police officer shall forward to the Magistrate along with the report-

(a) all documents or relevant extracts thereof on which the prosecution proposes to rely other than those already sent to the Magistrate during investigation;

(b) the statements recorded under section 161 of all the persons whom the prosecutionproposes to examine as its witnesses."

B) can accused compell wife's mother to undergo cross examination? If yes at what stage and under which section?Accused wants to be tried

regards ASHOK

ashoksrivastava (scientist) 31 October 2013

Indian Kanoon - https://indiankanoon.org/doc/139059411/

https://indiankanoon.org/doc/194127915/

these are the SC judgements relevant to your query

Regards ASHOK

ashoksrivastava (scientist) 31 October 2013

B) can accused compell wife's mother to undergo cross examination? If yes at what stage and under which section?Accused wants to be tried

REPLY yes she will have to submit to cross examination at the stage of crpc244 itself(evidence for prosecution).He can also cross examine under crpc246(4) on the next hearing after charges are framed or under crpc243(2) upon entering defence or any time during trial for justifiable reasons under crpc311.However its advisable to cross at the earliest available opportunities so that discretion of court doesn't come into picture All my 3 posts should be read together.

regards ASHOK