S.D.BAJAJ,J - (1.) SOLITARY , short and crucial point for determination in Criminal Revision No. 945 of 1988 is whether statements allegedly made by defence witnesses to the police, in the course of investigation, in terms of Sections 162 Criminal Procedure Code, 1973 can be put to the witnesses aforesaid in cross-examination for purposes of contradiction. Section 162 Criminal Procedure Code which gives a clear negative answer to the proposition is being reproduced hereinafter :- "162. Statements to police not to be signed : Use of statements in evidence - (1) No statement made by any person to a police officer in the course of an investigation under this Chapter, shall, if reduced to writing, be signed by the person making it, nor shall any such statement or any record thereof, whether in a police diary or otherwise, or any part of such statement or record, be used for any purpose, save as hereinafter provided, at any inquiry or trial in respect of any offence under investigation at the time when such statement was made : Provided that when any witness is called for the prosecution in such inquiry or trial whose statement has been reduced into writing as aforesaid, any part of his statement, if duly proved, may be used by the accused, and with the permission of the Court, by the prosecution to contradict such witness in the manner provided by Section 145 of the Indian Evidence Act, 1872 (1 of 1872); and when any part of such statement is so used, any part thereof may also be used in the re-examination of such witness, but for the purpose only of explaining any matter referred to in his cross-examination. (2) nothing in this Section shall be deemed to apply to any statement falling within the provisions of Clause (1) of Section 32 of the Indian Evidence Act, 1972 (1 of 1872), or to affect the provisions of Section 27 of that Act. Explanation. - An commission to state a fact or circumstances in the statement referred to in the sub-section (1) may amount to contradiction if the same appears to be significant and otherwise relevant having regard to the context in which such omission occurs and whether any omission amounts to a contradiction in the particular context shall be a question of fact."
(2.) A bare reading of this Section makes it abundantly clear that the prosecution may confront a prosecution witness with a statement made to the police during investigation in terms of Section 162 Criminal Procedure Code while putting him leading questions by way of cross-examination after getting the witness declared hostile and the accused may also confront him therewith in the course of cross-examination. This right to the prosecution as also to the accused is available in respect of a prosecution witness only. Shri Gamdoor Singh is admittedly a defence witness and, therefore, obviously not covered by this Section. Interpreting Section 162 Criminal Procedure Code, in Laxman Kalu Nikalje v. The State of Maharashtra, AIR 1968 Supreme Court 1390 and Mrs. Shakila Khader etc. v. Nausher Gama and another, AIR 1975 Supreme Court 1324 their Lordships of the Supreme Court observed : "Under Section 162 Cr.P.C. only witnesses on behalf of the prosecution could be contradicted by reference to their statements made to the police, and not court witnesses or defence witnesses." It is most unfortunate that ignoring the authorities aforesaid which are duly mentioned in the impugned order dated 5th August, 1988, the learned trial Court relied upon three High Court authorities on different facts to arrive at a contrary conclusion. In this view of the matter, impugned order dated 25th August, 1988 of the Additional Sessions Judge, Bhatinda is reversed and it is directed that the prosecution shall not contradict defence witness Gamdoor Singh by making a reference to his previous statements allegedly made to the police under Section 162 Criminal Procedure Code. Order accordingly.;