- (1.) THIS is a reference by the learned District Magistrate of Nagaur.
(2.) THE petitioner Nanu is standing his trial under secs. 379, 448 and 147 I. P. C. on complaint by one Ratanchand in the court of Sub-Divisional Magistrate, Nagaur. When one of the prosecution witnesses was being examined by the complainant, the accused wanted to cross-examine him by a statement made by the witness before the police in the course of investigation in respect of the same incident on a report to the police. THE prayer was disallowed on the ground that the case had not been started on challan. On revision the learned District Magistrate of Nagaur has recommended that as the complainant had made a report to the police in respect of the same incident and some investigation had been made, the statement of the witness could be used by the accused although the police had declined to take action and thereafter the complainant submitted a complaint before the court on which the proceedings were taken. The reference is correct. The only conditions for using a statement made under sec. 162 Cr. P. C. are that (i) the statement must be of a person who is called for, the prosecution and (ii) the enquiry or trial should be in respect of the offence which was under investigation at the time when the statement was made. Whether the enquiry or trial was being made on challan by the police or on complaint by a complainant is immaterial. The accused was entitled to ask for the statement made by the witness to the police and to cross-examine the witness on the basis of that statement. The reference is allowed and the case is sent back to the trial court for further proceedings according to law. .;