MEHBOOBMIYA HASUMIYA Vs. STATE OF GUJARAT

JUDGEMENT

(1.) * * * *

(2.) We find that when Ambalal Kalidas was in the witness box after the cross examination by the learned advocate for the accused a note was made that there was no reexamination and certain questions were put to the witness by the learned trial Judge. In those questions put to him by the Court questions based on the statement of Ambalal recorded by the police in the course of the investigation were put to him by the learned trial Judge. With respect to the learned trial Judge he was in error when he used the statement of the witness for the purpose of putting these questions to the witness. Sec. 162 Criminal Procedure Code clearly mentions that any statement or any record thereof whether in a police diary or otherwise or any part of such statement or record cannot be used for any purpose except as provided in the proviso under sec. 162(1) Criminal Procedure Code; and that proviso lays down that when a witness is called for the prosecution the statement recorded in the course of the investigation can be used by the accused for the purpose of contradicting him and with the permission of the Court by the prosecution to contradict such witness; but this proviso is the exception to the main body of sec. 162(1) and the words any purpose occurring in sec. 162(1) Criminal Procedure Code clearly indicate that it cannot be used for any other purpose. We may point out that in Emperor v. Kassamalli Mirzalli 44 Bom. L.R. 27 a Full Bench of the Bombay High Court was concerned with the provisions of sec. 63 of the City of Bombay Police Act as it then stood; and those provisions were identical with sec. 162 Criminal Procedure Code. The said sec. 63 was in these words :-

(3.) Then there was a proviso and the wording of that proviso was similar to the wording of the proviso to sec. 162(1) Criminal Procedure Code as it stood prior to the amendment of 1956. Beaumont C. J. has observed at page 40 of the report as follows:-