Ranawat, J. - (1.) THIS is a reference by the District Magistrate Udaipur. The facts leading to this reference are as follows. In a case State vs. Kesarsingh,heeralal and Govindsingh Jume Khan was produced as a prosecution witness on the 8th April, 1953, in the court of the City Magistrate, Udaipur. The witness in his examination-in-chief stated that he did not remember anything and that his statement which had been recorded previously was made by him correctly. The public Prosecutor thereupon wanted to put the statement of the witness, which had been recorded under sec. 164 Cr. P. C. , in the hands of the witness for refreshing his memory. Such a course was objected to by the other side, and the learned City Magistrate after hearing the arguments on both the sides on the point felt that such a use of a statement recorded under sec. 164 could not be permitted. The prosecution filed a revision application in the court of the District Magistrate, Udaipur, against the said order of the reference. The learned District Magistrate has observed that under sec. 159 of the Indian Evidence Act, the memory of the witness could be refreshed with reference to his previous statement and the order of the Magistrate should, therefore, be set aside, and he should be directed to permit the use of the statement recorded under sec. 164 Cr. P. C. for the purpose of refreshing the memory of the witness.
(2.) SEC. 159 of the Indian Evidence Act lays down that : - "a witness may, while under examination, referred his memory by referring to any writing made by himself at the time of the transaction concerning which he is questioned, or to so soon afterwards that the court considers it likely that the transaction was at that time fresh in his memory. The witness may also refer to any such writing made my any other person, and read by the witness within the time aforesaid if, when he read it, know it to be correct. Whenever a witness may refresh his memory by reference to any document, he may, with the permission of the court, refer to a copy of such document. Provided the court be satisfied that there is sufficient reason for the non-production of the original. An expert may refresh his memory by reference to professional treatises," SEC. 160 which is also relevant for the question which is raised in this case lays down that: - "a witness may also testify to facts mentioned in any such document as is mentioned in sec. 159, although he has no specific recollection of the facts themselves, if he is sure that the facts were correctly recorded in the document. " In his explanation the City Magistrate has confined his observation to a statement recorded under sec. 162 Cr. P. C, and he has not said anything about the statement of the witness recorded under sec. 164 PC. The record of the case was examined in this Court and the statement of Jume Khan under sec. 164 Cr. P. C. could not be traced. It is, therefore, not clear whether the prosecution wanted to put a statement recorded under sec. 162 or under sec. 164 in the hands of the witness to enable him to refresh his memory. If the intention of the prosecution was to give a copy of the statement recorded under sec. 162 Cr. P. C. to the witnesses, such a course could not warranted by the provisions of sec. 162, Cr. Procedure Code, itself. The relevant portion of sec. 162 Cr. P. C. provides that: - "no statement made by any person to a police officer in the course of an investigation under this Chapter shall, if reduced into 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. " The only use which can be made of such statement is that of contradicting witnesses, It is, therefore clear that a statement recorded under sec. 162 Cr. P. C. cannot be made use of for refreshing the memory of a witness under the provisions of sec. 159 or 160 of the Indian Evidence Act. The position of a statement recorded under sec. 164 Cr. P. C. is different. Such statement can be used for purposes of refreshing memory of a witness under sec. 159 or sec. 160 of the Evidence Act. Sec. 159 requires that the statement which is intended to be used for purposes of refreshing of memory must have been made when the transaction was fresh in the mind of the witness, and if the statement was recorded by somebody else, such statement must have been read by the witness within the time when his memory was fresh, and at the time he must have known it to be correct. As no copy of the statement of Jumekhan recorded under sec. 164 was traced on the record, it cannot be said that when such statement was recorded, and whether it was recorded when the memory of the witness was fresh or otherwise. It is, therefore, not possible for this Court to give any decision whether the particular statement which the prosecution wanted to put in the hands of the witness for the purpose of refreshing his memory was such as could be made use of under sec. 159 or 160 of the Indian Evidence Act. The matter can very well be left for determination of the City Magistrate. The idea of the City Magistrate that a statement recorded under sec. 164 Cr. P. C. could not be used under sec. 159 or 160 of the Evidence Act is incorrect, and the District Magistrate is right in observing that such a statement can be used for refreshing the memory of the witness provided conditions laid down in sec. 159 or 160 are satisfied. This reference is allowed, and the City Magistrate is directed to permit the use of the previous statement of the witness recorded under sec. 164 Cr. P. C. for the purpose of refreshing the memory of the witness if the conditions for use of such statement as provided in sec. 159 or 160 of the Indian Evidence Act are satisfied. .;