RAJENDRA SAXENA, J. - (1.) THIS petition filed under section 482 Cr. P. C. has been directed against the order dated 4. 8. 1992 of the learned Additional Sessions Judge No. 3, Jodhpur passed in Sessions Case No. 63/89, whereby he dismissed the application filed on behalf of the petitioners-accused under section 311 Cr. P. C. for recalling P. W. Shri Gautam Bhasker, Investigation Officer for proving the police statement Ex. D-6 of alleged eye-witness Onkar Ram recorded under Section 161 Cr. P. C.
(2.) IT is an admitted position that the Investigation Officer Shri Gautam Bhasker was examined by the trial Judge on 16. 11. 91 and that thereafter alleged eye-witness P. W. 17 Onkar Ram's statement was recorded on 25. 4. 92. Onkar Ram resiled from the contents of his police statement and as such in cross-examination he was confronted to portions 'a' to 'b' and 'c' to 'd' of Ex. D. 6 regarding certain material omissions and contradictions regarding the weapon of offence. In order to prove his police statement Ex. D. 6, the accused petitioners filed an application under Section 311 Cr. P. C. for recalling Shri Gautam Bhasker, but the same was refused by the learned trial Judge on the ground that it was not necessary to allow further cross-examination of the said witness. Hence this petition. I have heard the learned counsel for the petitioners and the learned Public Prosecutor and perused the relevant record. The statements of a witness recorded under Section 161 Cr. P. C. is not a substantive piece of evidence and it can only be used by the accused, and with the permission of the court by the prosecution to contradict such witness in the manner provided by the Section 141" of the Indian Evidence Act and when any part of such statement is so used any part thereof may also be used in re-examination of such witness, but for the purpose of only of explaining any matter referred to in his cross-examination. The words "if duly "proved"" in the proviso to Section 162 Cr. P. C. clearly show that the alleged record of statement to the police can not be admitted in evidence straight way and that the officer before whom the statement is said to have been made should ordinarily be examined as to any alleged statement i. e. relied upon by the accused for the purpose of contradicting a witness. In other words, there is no presumption as to the genuineness of the statement of the witness recorded under section 161, and unless those are duly proved, they cab not be used to contradict the evidence given in the court. In Podda Narayana Vs. State of Andhra Pradesh (1), this view has been reiterated and it has been held that the statement' recorded by the police during the investigation is not at all admissible in evidence and that the proper procedure is to confront the witness with the contradictions when they are examined and then ask the Investigation Officer regarding those contradictions. Under Section 311 Cr. P. C. a court may, at any stage of any enquiry, trial or other proceedings under the Code, summon any person as a witness, or examine any person in attendance though not summoned as a witness or recall and re-examine any person already examined, and the court shall summon and examine or recall and re-examine any such person if his evidence appears to it to be essential to the just decision of the case. Therefore, if the evidences of a particular witness appears to be essential to the just decision of the case, then the court is duty bound to summon and examine, or recall and re-examine any such witness. In the instant case the learned trial Judge departed from the general practice of examining the Investigation Officer after the statements of all other prosecution witnesses are recorded. The Investigation Office was examined on 16. 12. 91 and thereafter on 25. 4. 92 P. W. 17 Onkar Ram's statement was recorded, wherein he was confronted with his police statement Ex. D. 6. Portions 'a' to 'b' and 'c to 'd' of Ex. D. 6 can only be used to contradict the testimony 'of P. W. 17 Onkar Ram, when Ex. D. 6 is duly proved by the Investigation Officer, who had recorded the same. In such circumstances, for the just decision of the case, it is essential to recall and re-examine P. W. Shri Gautam Bhasker.
(3.) HENCE, it is manifest that the learned Sessions Judge has ignored the mandatory provisions of Section 311 Cr. P. C. and arbitrarily declined to accept petitioner's application and as such the impugned order amounts to abuse of process of the court as also to secure the ends of justice, the impugned order can not be sustained. Accordingly, I allow this petition, set aside the impugned order dated 4. 8. 1993 and direct the learned trial Judge to summon and re-examine P. W. Shri Gautam Bhasker, Investigation Officer. .;