Amal Kumar Chatterjee, J. - (1.) The short point for determination in this revisional application is whether the statement of a witness recorded by the police under section 161, Cr. P.C. in course of an investigation may be used against its maker in another trial in which he is arrayed as an accused. The learned Judge has answered this question in the affirmative while allowing an application by the prosecution for leave to bring on record certain statements made by an accused in course of an investigation into another offence in which he figured as a witness. The learned Judge has found that such statement was relevant as establishing a motive for the crime and he has relied upon the decision of the Supreme Court in Khatri & another v. State of Bihar and others, 1981 Cr LJ 597 and some other decisions more or less to the same effect.
(2.) Section 162, Cr. P.C. lays down how a statement recorded by the police in course of an investigation under section 161, Cr. P.C. can be used. It provides that the statement of a witness so recorded can be used to contradict his evidence in court by the defence and, with the permission of the court, by the prosecution. If this is the entire scope of the use of a statement recorded under section 161, Cr.P.C. then certainly it will not be open to the prosecution to use it against the maker of such statement in another trial wherein he figures as an accused. However, in Khatri's case (supra) the Supreme Court had quoted with approval the observation made by the same court in Tahasildar Singh v. State of U.P., AIR 1959 SC 1012 that this section was intended to protect the accused against the user of statements of witnesses made before the police during investigation, at the trial presumably on the assumption that the said statements were not made under circumstances inspiring confidence. Their Lordships have further observed in Khatri's case (supra) that this protection was unnecessary in any proceeding other than an enquiry or trial in respect of the offence under investigation and hence, the bar created by section 162, Cr.P.C. was a limited one. The learned court below relying on this observation has held that use of the statement made by an accused in course of an investigation into another offence in which he was a witness was not barred. In Khatri's case (supra) the question which arose for consideration before Their Lordships was whether certain documents called for by the court were liable to be produced or their production was barred under any provision of law. The documents were called for in connection with the disposal of a writ petition under article 32 of the Constitution and Their Lordships, after taking note of the procedure to be followed in a writ petition as prescribed by the Supreme Court Rules, were pleased to hold that even a statement made before a police officer during investigation can be produced and used in evidence in a writ petition under article 32 of the Constitution provided it was relevant under the Indian Evidence Act and section 162, Cr.P.C. was no bar against its production or use. Their Lordships' observation relied upon by the court below must be read and understood in this context only and not as laying down any general proposition of law because it was never canvassed before Their Lordships that the statement of a witness recorded under section 161, Cr.P.C. can be used against its maker in another trial where he is arrayed as an accused. Indeed if such a contention was raised, Their Lordships would have taken note of the Ruling of the Supreme Court in Gajendra Singh v. State of U.P., AIR 1975 SC 1703 given under circumstances comparable to those of the ease before us. In Gajendra Singh's case (supra) certain statements of a witness recorded under section 161, Cr. P.C. in connection with the investigation of a cross case was held by Their Lordships to be absolutely inadmissible. This decision has not been touched by the Supreme Court while deciding Khatri's case (supra). Therefore, it is quite clear that the statement of a witness recorded by the police under section, 161, Cr.P.C. in course of an investigation cannot be used against its maker in another trial in which he is arrayed as an accused.
(3.) On the above premises, the impugned order is liable to be struck down. The revisional application is thus, allowed, the order passed by the learned court below is set aside and the petition filed by the prosecution on 11.4.8,8 for allowing it to adduce further evidence is rejected. The learned Judge will dispose of the trial with utmost expedition. Revision allowed and the application of the prosecution rejected.;