CrPC | Accused Has Absolute Right To Use Section 161 Statements To Contradict Witnesses During Cross-Examination: Kerala High Court

The Kerala High Court, in a recent judgment, clarified that an accused has an absolute right to use the previous statements given by the witnesses to the investigating officer under Section 161 Cr.P.C. for the purpose of shaking the veracity of their evidence and making it untrustworthy.

Justice A. Badharudeen held:

“it is the absolute right of the accused to use previous statements during cross-examination of the maker of the same for the purpose contradicting the maker to shake the veracity of the evidence spoken by him and to make it as untrustworthy of credit, and the same is the main purpose of cross-examination as well.”

The case before the Court was a Criminal Miscellaneous Case preferred by the accused, who are undergoing trial before the Additional Sessions Court. During cross-examination, when the defence counsel attempted to use previous statements of three prosecution witnesses for contradicting them, the Sessions Court disallowed the same citing that the same is prohibited by Section 162 Cr.P.C.

Disagreeing with the Sessions Judge, the Court clarified the scope of Section 162 thus:

“It is the undisputed law that, a statement recorded under Section 161 of Cr.P.C. is not evidence by itself and the use of the same during evidence is limited within the mandate of Section 162 of Cr.P.C. The limited purpose is well settled. That is to say, use of statements recorded under Section 161 of Cr.P.C./previous statements recorded by an Investigating Officer has been provided in Section 162 of Cr.P.C. and the use is limited to contradict the witness in the manner provided under Section 145 of the Indian Evidence Act. Therefore, use of a statement recorded under Section 161 of Cr.P.C. to contradict a witness is not at all prohibited by Section 162 of Cr.P.C. and the restriction is its use as evidence in a case to prove a fact in issue.”

Thus, the Court allowed the plea and directed the Sessions Judge to recall the three prosecution witnesses and permit the defence counsel to cross-examine them by using their previous statement.

The Sessions Judge was also directed to expedite the trial and allow the petitioners to cross-examine these witnesses within 3 weeks of the order.

Case No: Crl.M.C. No. 2639 of 2026

Case Title: Lawrence and Ors. v. State of Kerala

Citation: 2026 LiveLaw (Ker) 279

Counsel for the petitioners: J.R. Prem Navaz

Counsel for the respondent: M.P. Prasanth – Public Prosecutor

Click to Read/Download Order