M.S. Nesargi, J.
1. This petition is directed against the order dated 11-6-1976 passed by the Munsiff, M. F. C, Bidar in C. C. No. 38/3 of 1975- The petitioner is A-l in the said case and the respondent is the complainant. By the said order the Magistrate has held that the petitioner and the remaining accused are not in law entitled to cross-examine the prosecution witnesses to be examined by the complainant-respondent in support of his case even by virtue of Section 145 of the Evidence Act.
2. The few facts necessary for a decision in this case may be stated as follows ;
In regard to an incident the concerned police investigated and filed a charge-sheet. It was registered as C. C. No- 1060 of 1973. Almost as a counterblast the respondent-complainant filed a private complaint against ten persons alleging offences Under Sections 448, 323, 326 and 395, IPC Cognizance of the offences Under Sections 448, 323 and 325, IPC only was taken by the Magistrate against eight persons viz., first three and six to ten mentioned in the complaint as accused. It was also ordered that the trial in C. C. 1060 of 1973 should take place after the trial in the private complaint, which is the one in question.
3. As is incumbent under the provisions of the Cr.PC copies of the statements of witnesses examined by the investigating officer in C. C. No. 1060 of 1973 had been supplied to the petitioner and the remaining accused. The petitioner and the remaining accused filed an application requesting the Court to call for the file of investigation viz., the case diary, done by the police, as according to them, they wanted to contradict the prosecution witnesses- That application was disposed of by the order dated 26-3-1976. The Magistrate refused the request for calling the case diary and ruled that as copies of statements of the witnesses recorded during the investigation in the said case are furnished to the accused persons, they are entitled to confront the prosecution witnesses with those in case such a need arose.
4. To reject the request under consideration the reasoning adopted by the Magistrate is that in view in the decision in re Vajrala Koti Reddi : AIR1960AP76 , the witnesses to be examined by the respondent-complainant in the case on hand, are not prosecution witnesses, because this is a private complaint and therefore, one of the ingredients of Section 162, Cr.PC which governs the provisions of Section 145 of the Evidence Act, would not be satisfied and as such, the petitioner and the remaining accused are not entitled to contradict the complainant's witnesses, as and when they are examined, with the copies of their statements said to have been recorded during the investigation in C- C. No. 1060 of 1973.
5. The view taken by the Magistrate is on the face of it, contrary to the provisions of Section 145, Evidence Act and Section 162 of Cr.PC A prosecution witness is a witness examined by the prosecution- In Koti Reddi's case (I960 Cri LJ 260) (Andh Pra) the Andhra Pradesh High Court has ruled that when a witness is examined by a Court as a court witness, such a witness is not a prosecution witness and as such, his previous statements recorded Under Section 162, Cr.PC cannot be used to confront such a witness under the provisions of Section 145 of the Evidence Act-This distinction which is manifest, has not been understood by the Magistrate. It is immaterial whether the complainant examines witnesses on his behalf in prosecuting the complaint or a prosecution is launched by the State through the investigating agency, the witnesses so examined in support of the prosecution case remain prosecution witnesses and as such, if they have made any previous statements to the investigating officers in regard to the very incident in question, those statements can be used to contradict the witnesses if such an occasion arises- It may be remembered that it is undisputed that C. C. No. 1060 of 1973 and the case on hand arise out of the same incident.
6. In the result, this petition is allowed and the order dated 11-6-1976 passed by the Munsif-J. M.F.C. (II Court), Bidar, in C.C. No. 38/3 of 1975 is set aside.