D.P. Desai, J.
1. The following questions have been referred to this Full Bench by the Divisional Bench :-
(1) Is the evidence of a witness whom statement recorded in the course of investigation under Chapter XII of the Criminal P. C. if read over to him before the witness steps into witness box becomes inadmissible or such as would be of no value whatsoever?
(2) Does such contravention of Section 152(1) affect admissibility or probative value of the evidence of such a witness ?
(3) Does reading over of such statement to a witness before he enters witness box amount to use of such statement contrary to S. 162(1)
These questions have arisen in the following circumstances :-
2. In sessions case No. 4 of 1976 from which this appeal arises two witnesses for the prosecution named Limji Ukad P.W. 10 Ex.17 and Chhaganbhai Vishalabhai, P.W. 11 Ex. 18 were called to prove an extra judicial confession alleged to have been made before them by the accused. In the course of cross-examination Limji Ukad stated that in the morning of the day of his deposition his statement was read over to him by police; and the police told him to give evidence in accordance with his police statement. In the course of cross-examination, he denied the suggestion that he was falsely involving the accused; and added that he had stated what had happened.
3. The other witness Chhaganbhai Vishalabhai said in his cross-examination that police had read over to him in that morning his statement recorded by police, and police told him to give evidence according to what he knew. He asserted that police had not told him to give evidence according to the police statement.
4. In this appeal it was contended before the Division Bench on behalf of the accused- appellant the reading over of the police statements to the respective witnesses amounted to use of police statements contrary to the provisions of S.162(1) of the Cr. P.C. 1973 ('the Code'); and therefore, the entire evidence of these two witnesses was inadmissible. Reliance in this connection was placed on a decision of the Privy Council reported as Zahiruddin V. Emperor, AIR 1947 PC 75 : (48 Cri LJ 679) and the decision of a Division Bench of the Bombay High Court in State v. Maganbhai Zaverbhai, Criminal Appeal No. 460 of 1963 decided by Bavdekar and Vyas, JJ, on Sept. 20,1953. It was pointed out that a similar statement was made by witness Bai Sabu in her cross-examination and her evidence was held inadmissible. It was also pointed out that in the context of a similar statement made by one witness Ladha Jivraj a Division Bench of this High Court consisting of Divan and J. B. Mehta, JJ. Followed the aforesaid two decisions and held the evidence of Ladha Jivraj inadmissible. This decision was rendered in the case of Kathi Moti Lakha v. State of Gujarat, Criminal Appeal No. 543 of 1962 decided on 21/22nd Nov. 1963. the Division Bench in the present appeal referred to another decision of a Division Bench of this Court in Kanbi Vaghaji v. State, : AIR1968Guj11 ; and it was of the view that there is an apparent conflict between the decisions of the two Division Benches of this Court. Therefore, it has made this reference.
5. To my mind the questions referred are of general importance and need a final and authoritative answer based an the correct interpretation of the prohibition against use of Police statements enacted in Section 162(1) of the Code. If they are not answered finally there would be scope for uncertainty as to the correct legal position. Besides. in any came the decision of the Division Bench of the Court in Kathi Moti Lakha's case (Cri App. No. 543 of 1962, D- 22-11-1963) (Guj) which held the substantive medians given by a witness wholly in-admissible nearly because the police statement was read over to the witness end be was told to depose accordingly does, speaking with respect, require reconsideration: and in this context the decision of the Division Bench of the Bombay High Court in State v. Maganbhai (Cri APP. No. 460 of 1953, D/- 29-9-1953) (Bom) also, speaking with respect, requires reconsideration. In my view, the consequences of these two decisions in actual practice would be far-reaching in the administrated of criminal justice In this State. I am, therefore, of the opinion that. the questions referred must be decided in, the interests of administration of justice.
6. In order. to facilitate the enquiry as to the correct interpretation of S. 162(1), the following five illustrative cases will be useful:-
(1) La a case in which there is mere reading over of the statement before Police to the witness before he enters Me box without giving him any instruction as to what he should depose.
(2) In a case falling under No. I above, the witness is told to give evidence as to what he had actually seen.
M In a case falling under No. 1 above, the witness is instructed to give evidence accordingly.
(3) In a case falling' under No. 3 above. tile witness tells the Police officer that he will not give evidence accordingly
(4) In a case falling under No. 3 above, the witness tells the police officer that but give truthful evidence of what he had seen.
(5) In a case falling under No.3 above, the witness agrees to give evidence accordingly and tells in cross-examination that he has given evidence accordingly.
Section 162 of the Code reads, as under:-
'162(1) No statement made by any Person to a Police officer in the course of all investigation under this Chapter, shall it reduced to writing, be signed by the person making it; nor shall any such statement or any record thereof, whey 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:
Provided that when any witness is called for the prosecution in such inquiry Or trial whose statement has been reduced into writing as aforesaid, any part Of his statement, if duly Proved, may be wed by the accused, and with the permission of the Court, by the prosecution, to contradict such witness in the manner. Provided by S, 145 of the Indian Evidence Act, 1872; and when any part of such statement of so used, any part thereof may also be used in the re-examination of such witness, but for the purpose only of explaining any matter referred to in his cross-examination.
(2) Nothing in this section shall be deemed to apply to any statement falling within the provisions of Clause (1) of S. 32 of the Indian Evidence Act, 1872, or to affect the provisions of S. 27 of that Act.
Explanation- An omission to state a fact or circumstance in the statement referred to in sub-s. (1) may amount to contradiction if the same appears to be significant and otherwise relevant having regard to the context in which such omission occurs, and whether any omission amounts to a contradiction in the particular context shall be a question of fact.'
7. As observed by the Supreme Court in Tahsildar Singh, v. Stste of U. P. : 1959CriLJ1231 , the object of the main section is to impose a. general bar against the use of statement made before Police (vide para. 16 at p. 1022). The words 'for any purpose' would suggest the width or amplitude of the bar; but these words have to be read in the context they occur along with the .proviso and sub-s. (2). . The Supreme Court in the aforesaid decision indicated the correct rule of interpretation in para. 14 in the following teems:-
'The proper course is to apply the 'broad general rule of construction, which is. that a section or enactment must be construed as a whole, each Portion. throwing. light if need be on the rest.
The true principle undoubtedly is that the sound interpretation and meaning of the statute, on a view of the enacting clause, saving clause and proviso taken and construed together is to prevail.'
8. There are two possible interpretations which call, for consideration. And they are (1) in all such cases as contemplated by the, questions referred to the -Full Bench (which according to me will also include illustrative cases Nos. 1 to 5 above) there is no use of the police statement as contemplated by S. 162(1), and therefore, the substantive evidence given by a witness on oath before the Court does not become inadmissible. In these cases, it is on1v the probative value of such evidence which may be affected depending upon the facts and circumstances of each case; and (2) in the , aforesaid cases the police statement has been used within the meaning of S. 162(1) and therefore, the substantive 6idence of the witness becomes inadmissible. In the alternative, in any case, the substantive evidence becomes inadmissible, If not, in cases Nos. I to 4 individually, in a case which falls under No. 5 read with Nos. T and 3. We have to find out which is the sound interpretation of S. 162(1) applying the aforesaid test of construction.
9. Now, reading the provisions of sub-s. (1) together with the proviso and sub-s. (2), the following picture emerges:
(1) There is a general bar against the use of police statement for any purpose, not anywhere, but at an inquire or trial in respect of any offence under investigation at the time when such statement was made.
(2) The proviso makes exception to the bar against user in cases where the witness is called for the prosecution and is to be contradicted in accordance with the Provisions of S. 145 of the Evidence Act, 1872. Here -again, if the witness is not confronted with the police statement under S. 145 of -the Evidence Act, no portion of his Police statement can be proved subsequently to show the contradiction. In fact, the statement cannot be proved independently to discredit the witness under S. 155(3) of the Evidence Act. Similarly, it cannot be used to contradict a witness not called for the Prosecution but for the defense or by the court (See Tahsildar Singh (supra)).
(3) The statement can be proved as a substantive piece of evidence in cases falling under Ss. 32 (1) and 27 of the Evidence Act.
10. Thus, in enacting the exceptions contained in the proviso and sub-s. (2), the Legislature had the evidence Act in mind. Obviously, this would be so because all enquiries and trials under the Code were and are governed by the Evidence Act. Thus, in enacting the general bar against use of police statements the Legislature was enacting against use of the police statement at an inquiry or trial governed bv the provisions of the Evidence Act. The words 'used for any purpose ... ... ... at any inquiry or trial ... .....have to be construed in this context which emerges as a result of reading of the sections as a whole including the proviso and sub s. (2). What is the meaning of the words 'used at any enquiry or trial' To me, it is evident that the user contemplate is actual user in the proceedings in Court. It is in case of such user that you can say that the police statement has been used at the enquiry or trial.
11. This user in court proceedings may take various forms resulting in an attempt-
(1) to contradict a defense or court witness;
(2) to Corroborate the prosecution witness under S. 157 of the Evidence Act;
(3) to impeach credit of the witness under S. 155(3) of the Evidence Act;
(4) to refresh memory of the witness under S. 159;
(5) to prove an admission by the accused of an incriminating fact (not amounting to confession) under S. 21 of the Evidence Act:
(6) to explain away certain facts brought out in cross-examination of the witness;
(7) to correlate sequence of . events which took place before, at the time of and after the incident;
(8) to show to the court without confronting the witness that the witness has resoled from his police statem- ent and was, therefore, won over by the defense-,
(9) to show that the explanation given by the accused at the time of the statem6nt before police was quite different from the explanation given at the trial. It must be .'borne in mind that S. 162 refers to statement made by any person which would include' the statement made ,by a person who subsequently becomes an accused or the statement by a person who is accused of the' offence when the statement is recorded.
12. Precisely, the words 'for any purpose' have been used to cover also user for a purpose which is not contemplated by the Evidence Act. But all the same the user contemplated by the Legislature is actual user in court proceed logs and not user de hors the court proceedings. Everyday the court proceedings begin when the court starts harming, a case and end when the court stops the proceedings and adjourns them to the next day or' some other day. It is this user which the court can itself see and prevent at the right moment which is contemplated by the general bar against user contained in S. 162(1). If the court prevents -the prohibited user, at the right time, nobody can say that on account-of an unsuccessful attempt at user of the statement in the court proceedings the substantive evidence given by the witness -ha a become inadmissible. It is again not every isolated act of user in court proceedings which makes the entire evidence of the. witness inadmissible. Thus. if the police statement is brought on record to corroborate the testimony of the witness under S. 157 of the Evidence Act or to impeach his credit under S. 155 of the said Act, the said statement can be excluded from evidence and not the entire substantive evidence of the witness. It is the effect of the user in the court proceedings contrary to the prohibition contained in S. 162(1) which has to be considered. Thus, in Zahiruddin's case (48 CA LJ 679) (PC) before the Privy Council (supra), the frequent, material and substantive use of Police statement made by the witness while giving evidence made it impossible to find out which part of the evidence the witness stated from his memory and On which part he refreshed his memory by the Police statement in contravention of the bar. The effect of this gross, and, in a way, unprecedented and unchecked user was to render the entire testimony of the witness inadmissible. It may not be out of place to state here that the user in Zahiruddin's case was also actual user of the statement in the court proceeding when the witness gave evidence.
13. It is noteworthy that except the decision of the Division Bench of the Bombay High Court and this High Court which have occasioned this reference, not a single case of user of police statement outside the court proceedings was cited at the Bar even though members of the Bar aver permitted to intervene and some senior member.9 did intervene and made their submissions. As against this, there are cases which dealt with user of police statement in the court proceedings. The Privy Council decision aforesaid is one of them. Another case is Kali Ram v. State of Himachal Pradesh : 1974CriLJ1 wherein a letter written by a witness during investigation Containing an extra judicial confession by the accused was brought on record as Ex. P-EEE. The Supreme Court held that the letter amounted to a police statement and was inadmissible under S. 162. In Sat Paul v. Delhi Administration, (1976) 1 SOC 727 : (1976 CA LJ 295), the High Court used the police statements of two witnesses duly proved and brought on record under the provise to S. 162, for the purpose of finding support to the version given by three other witnesses (see para. 11). The Supreme Court held such use was not Permissible under s. 162 of the Cede (vide para 55). This case illustrates that a a statement brought an record In accordance with law was sought to be used for a purpose not contemplated by the Evidence Act and amply justifies the use of the words for any purpose' in the prohibition clause. The purpose be any purpose but the user for that purpose must be actual user in the court proceedings.
14. Let is now consider- the second Interpretation. In the first place it must be remembered that S. 162 deals with use of police statement and not admissibility of substantive evidence given by the winter. In a given case like the one before the Privy Council, the effect of contravention of the bar created by S. 162(1) may result in rendering the entire oral testimony by a witness 'inadmissible. Really the case before the Privy Council was a grow , in which there was flagrant violation of the bar detracted by S. 162(1) in a court proceeding in the very presence of the Magistrate. The Privv Council while dealing with reason give by the High Court in acceptors Roy's evidence also said:-
'It is impossible to say what Mr. Roy's evidence would have been if he had not used the statement to aid his memory... ... .... (para10).
In that case, the effect of the contravention of & 1,62 (1) was judged. It Is therefore clear that in illustrative ewes Nos. I and 2 you cannot discard the substantive evidence given by the witness at the trial, out of band an the plea that the evidence was inadmissible by the use of the polfre statement. same reason would apply to case No. 4. If this reasoning is correct, one lesions is clear Mere reading aver ,of the police statement to the witness before he enters the box does not amount to con' wavention of the bar so as to render the evidence of a truthful and honest witness inadmissible. In the third instance, the witness though instructed to give evidence accordingly may not in point of fact haw given evidence according He may have given different details in respect of some of the mutter relations to the incident. Unless, therefore, the judge, in order to decidq upon the admissibility of the evidence ,of the witness, sets himself to the task of comparing the evidence of the witness his police statement nothing can be 41one. And to compare the police With the evidence in order to find out whether the witness had given evidence accordingly in itself amounts to user of the police statement in the court proceedings contrary to the bar. It is futile to make a further enquiry in cases Nos. I to 4 to find out whether the witness has given evidence according to the police statement in order to decide whether his evidence is admissible. I should, therefore, fizid no difficulty In holding that in none of cases Nos. I to 4, question of inadmissibility of -the substantive evidence of the witness arises. The question no doubt will arise as to the probative value to be attached, to the evidence of such witness. Let us now turn to case No. 5 and find out whether the said case win impel us to give different meaning to the words of prohibition contained in S. 162(1).
15. In case No. 5. all that the evidenced would show is that the witness had agreed to give evidence accordingly and tells the court that he has given evidence accordingly. By this, statement before the court no part of police statement is brought on the record of the case; nor has the. witness while in the box refreshed his memory under S. 159 of the Evidence Act. It is only the cryptic word 'accordingly' selected carefully by an intelligent cross examiner which creates an impression that the witness has merely reproduced the statement before polim The Judge in' an attempt to hold the evidence of the witness inadmissible takes the further (and In my view unjustified) step of inferring that by a Process of quick memorization the madness has been able to reproduce before the court his ,statement before police. In the Bombay decision of the Division Bench, Vyas, J. considered memorization of a very short statement read over to the witness just before he entered the box probable. It is not my Intent to contradict this probability. But I am reminded of the words of Ray, C. J. (as he then was) in the well-known Habeas Corpus case utterl4d in another context-
'Extreme examples tend only to obfuscate reason and reality' A. D. M. Jabalpur v. Shivk-ant Shukla : 1976CriLJ945 .
In fact by resorting to this process of extreme example in o to refute the aforesaid statement of Was, J. ane may conceive of a case When 'a witness is indifferent when his police statement is being read over to him. No purpose can be served by resorting to such extreme examples.
16. Now. in considering case No. 5. let us have before us a section of witnesses who are not uncomnwn in criminal trials. They are backward, ignorant, unwary witnesses, not accustomed to understand the import of carefully selected words in cross-examination but still are truthful and honest witnesses. They may hail from far off villages or forest areas. These truthful and honest witnesses nafurally have given truthful account of what they had seen in their statements before police. Before they enter the box their police statements are read over to them and they are told to give evidence accordingly. Having found that the police statement contains the truthful count of what they had seen, they agree to give. evidence - accordingly. These witnesses when asked whether their Police statements were read over to them and they were asked to give evidence accordingly would naturally reply in the affirmative. Then they would be asked whether they agreed to give evidenee accordingly and they would say 'Yete. Then follows the damaging question:
'Have you given evidence accordingly?'
Do we expect the witness to be alert at that stage, discern the trap laid in this seemingly simple question and give a reply 'I have not given evidence accordingly if you mean thereby that I reproduced the police statement but I have given evidence of what I had seen personally.' If not discerning the trap laid by this seemingly simple question the witness replies to the question Mi the affirmative, do we hold thereby that the witness has merely reproduced the police statement and has no personal knowledge about the incident. It is said that an attempt by the Public Prosecutor to ascertain from the witness in reexamination whether he gave evidence from his personal knowledge would solve the deadlock created in the cross-examination. I do not know how. On the record, the cross-examination and re-examination both stand and the Judge is called upon to decide the question of admissibility of the evidence of the witness. It is not as if the re-examination alone is to be read for deciding the question of admissibility. I fail to see how can a Judge decide the question of admissibility effn after reading the evidence of the witness as a whole unless he takes the police statement In hand and sets himself to the that ad con4wine the evidence given by the vritum in the box with the Police stat-ent. And is it not possible that the evader af a truthful azqd honest witness was has given a truthful account of the incident in his police statement would accord with his Police statement
17. Let me point out another consequence of holding in case No. 5 that the evidence - of the witness given o1a oath before the court is inadmissible and wiped out from the record. This consequence is so damaging to the administration of criminal justice that it came to the forefront of my mind an the very day the matter began. It is not uncommon to find prosecution witnesses wola over by the defence. 'Mese witnesses have seen the incident and have personal knowledge about the same. aboue have given a correct account of t!he same before police. Present practice is that these witnesses resile from their police .statements and give evidence Contrary to the same in chief examination. The Public Prosecutor declares them bostile and cross-examines them which, is not necessarily limited, to , contradicting them with their Police statement. In the course of cross-examination. the Public Prosecutor with the permission of the court contradicts them by their police statement The Public Prosecutor may succeed as a result of Crossexamination to bring on record some material which he may ask the court to accept at the time of arguments. It is well settled that part of the testimony of a hostile witness can be accepted subject to certain safeguards (vide Sat Paul V. Delhi Administration : 1976CriLJ295 . A good defence lawyer would get a very formidable weapon in his armoury now when he has to handle a witness won ova by the defence. The witness need not resile from his police statement. In chief exammation, he would give evidence of what he had seen. The Public Prosecutor having questioned the witness to the end of the story will hand him over to the defence for cross-examination in the belief that the witness has supported the prosecution. And the able de fence lawyer will put to him the follpw ing four questions in cross-exmination:-
(1) Was your police statement read over to you today before yin entmed the box?
(2) Were you told to give evidence accordingly ?
(3) Did you agree to give evidence accordingly?
(4) Have you given evidence accordingly?
The witness who has been won over will answer all these question in the affirmative. What can the prosecutor do in re-examination in such a situation? When the evidence of the witness is over, the defence lawyer will get up and seek the ruling from the court that the whole evidence of the witness i~ inadmissible because his police statement has been used at the trial for a prohibited purpose. The witness would be spared the odium of cross-examination bv, the Public Prosecutor and contradiction by his police statement. His conscience is satisfied that he has not given false account of the version. The purpose of the defence is also served. It is only the administration of criminal justice which suffers and mav conceivably be ever ridiculed on the basis that even though evidence was given on oath about the occurrence, still by some principle of law unknown to the untrained mind of a layman that evidence was not acted upon bv the court. This damaging consequence justifies, in my opinion, a constructive and purposeful approach in the interpretation of S. 162 of'the Code. The approach which safeguards the interests of the accused and at the same time prevents shutting out of substantive evide, of prosecution witnesses would lead , the sound interpretation of the provision. of the statute under consideration. By the interpretation pointed out earlier, the interests of the accused are not Jeopardised; because in illustrative cases Nos. 1 to 5 the question of probative value to be attached to the evidence of such a witness will remain open for examination bv the court. In the facts and circumstances of a given case the court may hold that the probative value of the evidence.of such a witness is nil. In another case, the court may think fit to act upon such evidence. Thus, by holding on the aforesaid interpretation that the evidence of such a witness is admissible, the interest of the accused is not seriously jeopardised. Whereas, on the other interpretation, the evidence of the witness is discarded in limine from consideration on the ground that it is inadmissible. The court refuses to apply its mind to such evidence though it is given by a competent witness on oath and was open ' to being tested by cross-exami-, nation. To extend the ratio of the decision of the Privy Council to use of Police statements de hors the court proceedings when the court has not assembled and the witness is not in the box, on the supposition that thereby the interests of the accused are further protected,, will not onlv be unreal and unjustified bV the language of S. 162(1) but will lead to shutting out of the evidence of a truthful and honest witness and result in consequences darnaging to the administration of criminal Justice aqpointedout above. Today, administration of criminal justice also occupies a prime place in the social order of our welfare state. Our State is not merelv a police State now, concerned mainlv with the function of preserving law and order in the society. Legislation is resorted to as part of welfare activity of the State to check economic offences, offences against public health, hygiene and, morals. And all these offences are ordinarilv tried under the procedure laid down under the Code and recording of evidence is governed by the provisions of the Indian Evidence Act. Many of these offences (which are cognizable) are investigated in accordance with the Provisions of Chapter XII of the Code. These considerations also fortify the aforesaid approach.
17-A. The second interpretation whicb makes substantive evidence of witness inadmissible at the trial is based on occurrence of fact or facts outside the court room prior to the witness having entered the box. These facts are objective facts on the establishment of which, according to the second. interpretation, the evidence -given bv the witness becomes inadmissible. These objective facts are three; viz., (i) reading over of the police statement to the witness outside the court room 'before he enters the box; (ii) instructions given-to the witness by the police to give evidence according to the statement and (iii) agreement of the witness to do so. Now, in a given case, a witness may denv occurrenqe of all the aforesaid 3 facts -and the defence lawyer maintains that these three facts have occurred and he has evidence to prove the same. Is the court in such situation to enter into a subsidiary inquiry as to occurrence of these facts in order to hold that substantive evidence given bv the witness before court has become inadmissible. One may trv to answer this question bv saying that the evidence to contradict the answers given by the witness in the course ' of crossencamination is' not admissible. This is no doubt normally so. . But , then here. the evidence would tend to establish all these facts, which if established, would render the evidence inadmissible. Therefore, the purpose of giving evidence is not to contradict evidence, Riven bv a witness, but - to establish all these facts on the basis of which, on the strength of the second interpretation, the defence can say that there . is contravention of the bar created by S. 162(1) and therefore, the substantive evidence becomes inadmissible. To my mind the legislature could never have contemplated such a situation leading to subsidiary inquiry on collateral facts in the course of an inquiry or trial while enacting the bar in question.
18. Reverting to the question which of the two interpretations mentioned earlier should be accepted, we must bear In mind the following basic features:
(1) Statent (oral or reduced to writing) made by a witness is a previous statensent of the witness as known to the law of evidence contained in the Indian Evidence Act.
(2) All enquiries and trials under the Code are governed by the provisions of the Evidence Act vAiich inter aba deal with admissibility and use of previous statement. The previous statement may be of a dead person, it may be of a person who is or subsequently becomes the accused or it may be of a witness.
(3) Sections 21, 32, 1, 145, 155, 157, 159 and 160 are some of the sections of the Evidence Act which deal with admissibility, and use of previous statements. It way be stated that the previous statement of the accused which does not amount to a co nfession before Police officer and which is made, prior to-,the inyestigatiori can -be proved as containing admission of an incriminating fact under S. 2Y of the Evidence Act (See at P. 309, para. 23). Thus, S. 21 is invoked in criminal cases also in respect of Previous statement made by the accused.
(4) Out of the aforesaid group of see tons, Ss. 21, 32, 155 and 157 would mak; Previous statements admissible in evidenoe in the absence of the bar created by S. 162(1). Similarly,, Ss. 145, 159 .and 160 contemplate actual use of the 1wevious statement while the witness was In the box.
19. Now, In the absence of the bar created by S. M2 (1) of the Code, all these previous statements made during the course of an Investigation under Chap. XII could either have been brought on record under Ss. 21, 155 and 157 of the Evidence Act or could have been used while the witness was in the box for the purpose mentioned in Ss. 145, 159 and 160. Permitting such wide use of the previous statements recorded, in the course of investigation under Chap. X11 would have considerably affected adversely the interests of the accused. The Legis ' lature thinking that, such previous statements 'were not made under circtunstances inspiring confidence' (to quote Suba Rao, J. from Tehsildar Singh's case (1959 Cri LJ 1231) (SC) (supra) imposed the ban on.the use of these statements at the trial which but for the prohibition could have been used to the detriment of the accused at an enquiry or trial under the provisions of the Evid6nce Act. In making exceptions to the bar also the Legislature had in mind the Provisions of Evidence Act only. The Object of the Legislature was to see that the Prohibited statements are not actually used in the proceedings before the court whethesr for the aforesaid purpose under the Evidence Act or for any other purposes some of which have been illustrated earlier. The object was not to shut out substantive evidence Riven by competent witness' at the trial on the basis of user of the statements de hors the proceedings, before the witness entered the box. In my opinion, and speaking with great respect to the learned Judges who took a contrary view, it would be straining the language of S. 162(1) to an unreasonable limit to shut out substantive evidence given bv a witness on the basis of case No. 5 set out earlier. My reason for this view is that the statement is not used at an enquiry or trial as understood in the sense of actual use in the proceeding before the court. The attempt in case -No. 5 is to tutor the witness and that factor no doubt goes to the Probative value of the evidence of the witness and not to admissibility of the substantive evidence given on *oath be fore the court. In a given case, the ere' dibility of the witness may be held wholly shaken keeping in mind facts of each case including the type of witness that the couit has to deal with. In a given case, the court may in the circumstances of that case decline to give im Portance to this attempt to tutor the witness and act upon his evidence. But in no case, the substantive evidence given bv the witness covered bv cam Nos. 1 to 5 can be held inadmissible. That was not the object with which'the Legislature enacted the prohibition contained in S. 162(1).
20. in mv opinion, therefore, the use prohibited is the use which could have been made of the previous statement in the proceeding before the court. Let us now see whether the decWon of the Privy Council in ZAhiruddin's case, (48 Cri LJ 679) (PC) (supra) would run counter to this interpretation. If it dops. I am in duty bound to follow it and lay down that the substantive evidence of the witness becomes inadmissible
21. In Zahiruddin's case (48 Cri W 679) (PC), the question arose as regards the evidence of one Mr. Roy, a Magistrate, whose services as a witness were obtained at a trap laid by the Police and who had given a signed statement to the police during investigation. The trial Magistrate at the end of the evidence of Mr. Roy made the following note:
'He refreshed his memory, from time to time, by consulting his written statement to the police during investigation!'.
One of the two contentions submitted to the Privv Council on behalf of the appellant accused as contained in para. 9 will bear repetition:-
'And, alternatively, that Mr. Roy's evidence was rendered inadmissible, for either of two reasons; first, because he had previous1v given a signed statement to the police, and second, because in giving his evidence he made use of the signed statement to prompt his memory'.
The Privy Council in terms stated in the beginning of para. 9 that the question 'concerns the effect of S. 162(1), Criminal P. C.' Me Priv Council found no difficulty in rejecting the first Part of the contention based on the signed statement of Mr. Roy. On the second question, the Privy Council took note of the fact that the note made by the Magistrate disclosed that Mr. Roy 'while giving his evidence made substantial and material use of the signed statement given by him. to the police ... ... ... ... ', This was taken as a finding of fact ' It is in this context that the following observations were made in para. 9:-
'The use by a witness while he is giving evidence of a statement made by him to the police raise different considerations. The eategadoel prohibition 4d such use would be merely disregarded if reliance were to be pieced on the evidence of a witness who had maft matorial use of the statement when he giving evidence at the trial be therefore. the Magistrate or presidbe Judge discovers that a witness has made material use of such a statement it b his dut under the section to disregard by evidence of that witness as -humimissible... ... ... The Magistrate's reason iar doing so is too broad1v stated for it b not the mere fact that Mr. Roy's had signed the statement but the fact that Joe had it before him and consulted it in the witness box that renders the evidence incompetent'
22. These observations do not run contrary to the above interpretation of S. 162(1). On the contrary, speaking, with respect, they am consistent with the said interpretation. The volice statement was used by Mr. Roy in. the Proceeding before the court as if he was entitled to do so under Ss. 159 and, 146 of the Evidence Act.
23. To my mind, the ratio laid donm by the Privy Council cannot be extended to cases covered bv the questions repferred to this Full Bench. In this context, the following observations of the Supreme Court are quite apposite:- -
'A decision is only an authority for what it actual1v decides, What is of the ,essence in a decision Is its ratio and not every observation found therein nor what logically follows from the various observations made in it.'
(vide State of Orissa v. Sudhansu Sekhar : (1970)ILLJ662SC .
24. We may now examine the decision of the Divisor Bench of the Bombay High Court in State v. Maganb4tol Jhaverbhei, Criminal Appeal No. 460 61 1953 decided by Vyas and Bavdekar, JJ. on Sept. 20, 1953. The learned Judges were considering the evidence of one Bd Sabu, daughter of Kaia Khalpe. Elm evidence would have connected the accused of that case with the offence ad murder under consideration. Her case was that while she was preperinx leaves. the deceased all of a sudden hurriedly entered her home and ran into tlv-- backyard in a bedew condition. He was closely followed in to the backyard bv this six accused who were armed. 7bereuPon, she was terrified and ran away from the house. It was found that her whom statement was read out to her belbre'640F evidence was recorded in the Commit. ting Magistrate's Court as well as Sesons Court. Her statement was recorded under S. 164 of the Code by a Magistrate and before that also her police statement was read out to her. The ewe would fall under case No. I of the five Illustrative cases set out earlier. Vyw J. was of the view that on account of reading out of her police statement at three stag' her evidence was inadmissible in view of the decisions of the Privy Council in Zahiruddins case (48 Cri LJ 679) (PC) (supra)- In his opinion, the view expressed by the Privv Council was not to be confined 'only to the physical use or tangible use of her police statement bv a witness while giving evidence in Court.' The learned Judge went on to say:-
'In other words, in order that the observations of their Lordships made by them in the above mentioned case may be attracted, the police statement of a witness need not necessarily be in his hands or before his eyes at the time of giving evidence in the court.'
'Speaking for myself, I have no doubt that their Lordships' observations would apply with equal force even if a witness made a mental use of his police state_ ment, which was just Previously read out to because by reason of such mental use, the witness's evidence was bound to be mounded by or modelled on his police statement.' be learned Judge then Proceeded to -give illustration of a case in which a witness is 'almost made to commit to memory his police statement before stepping into the witness box to give evidence': and reasoned on this basis that the evidence of such a witness was bound to be almost a copy of his Police statement. Speaking with great respect, this is an extreme example, and extreme examples do not become helpful in interpretation of statute. With regard to Sabu's evidence, the learned Judge observed that material parts of her Police statement 'must have almost come to be committed to memory' and her evidence 'must have been modeled on her Police statement'. In the end, the learned Judge sad that reading over of the Police statement to witness before her stepping into the box amounts to use of the police statement at the trial of course, in the alternative, the learned Judge also said that the value of Satbu's evidence must suffer considerably.
Bavdekar, J. refused to express any opinion on 'how far the evidence of a witness would become admissible on the ground that the witness' police statement was used to refresh his memory. He at the sam time expressed concern on the practice of reading over police statement to the witness before he enters the box and said 'it is doubtful how far the practice, which has been deprecated by this court so often, would stop unless this court were to hold categorically that the evidence of a witness would be inw1missible in case his statement to the police was used to refresh ,his memory'. What is of utmost significance for our Purpose is the learned Judges exposition of the basis of the Privy Council's decision 'in Zahiruddin case The learned Judge said:-
'But the fact remains that, in the case which was before their Lordships of the Privy Council, the witness had used the statement to refresh his memory while he was under examination in the witness box and it was obvious. therefore, that it could not be. argued with any reason that the statement was not used-Ot the triaL I am inclined to think that the decision of their Lordships of the Privv Council to exclude altogether from the evidence the deposition of a witness given by him in such circumstances was based not upon the view that the wit-ness's evidence amounted to a police statement, but upon the view that it was the policy of the Legislature to prevent any use of the Police statement of a witness at the enquirv or trial and if the witness was allowed to use his police statement to refresh his memory when he gave the evidence, it would be dew feating the statute to allow his evidence to come. on record'.
With respect, that is the correct exposition of the ratio of the Privy Council decision which was not based on any sup'Posed identity between the police statement and the evidence given at the trial. If this is the correct ratio laid down with respect to actual use of the police statement while giving evidence, what logicallv follows from it cannot be con-sidered to be the ratio of the Privy Council's decision. The said ratio does not apP1v to the questions referred to this Full Bench and those questions are not computed by the Privy Council decisive.
25. We have already seen that in State v. Maganblial (Cri. App. No. 460 of 1953, D/- 29-9-1953) (Bom) (supra) It was the opinion of Vyas, J. alone which laid down that the evidence of a witness to whom police statement was read over thrice at different times before she gave eviden6e in the Sessions Court was inadmissible on the basis that the bar of S. 162(1) was contravened. Bavdekar,J., in terms refrained from expressing definite opinion on this question. The Division Bench of this High Court consisting of Divan and J. B. Melhta, JJ. in Kathi Moti Lakha v. State of Gujarat, Criminal Appeal No. 543 of 1962 decided on 21/22nd Nov. 1963 laid down a similar principle after referring to the decision of the Privy Council in Zahiruddin's case (48 Cri LJ 679) (PC) (supra) and Magaribliai's case (supra). The Division Bench of this Court as appears from its judgment reproduced the observations of Vyas, in Maganbhai's case under the impression that that was the decision of the Division Bench. Speaking with great respect, I am of the opinion that the interpretation of S. 162 made bv Vyas, J. and the Division Bench of this Court is not correct in view of the conclusion reached by me as to the interpretation and scope of the prohibition contained in S. 162(1) in the context of the questions referred to the Full Bench. It is already shown earlier that the cases covered by the questions referred to this Full Bench are not governed by the dictum laid down by the Privy Council in Zahiruddin's case (supra).
26. it must, however, be emphasized that the practice of reading over police statements to witnesses before they enter the box is not health practice. In cases where such practice is resorted to, the Magistrates and Judges should carefully consider the evidence given by the witness and decide upon the probative value of such evidence in view of the facts and circumstances of each case.
27. Answers to the questions referred to this Full Bench are as under :
(1) The evidence of such witness does not become inadmissible; its probative value has to be judged in the, circumstances of each case. No hard and fast rule can be laid down that in all such eases the evidence of such witness will be of no value whatsoever.
(2) Reading over of the police statement to the witness before he enters the box does not amount to contravention of the prohibition contained in S. 162(1). But the fact of reading over of the statement may affect the probative value of the evidence of the witness.'
(3) Reading over of such a statement to the witnesa before he enters the box does not amount to use of such state-ment cont any to S. 162(1).
The matter will now go back to the Division Bench.
Before parting, I must on behalf of myself and my colleagues, put on record our gratitude to the learned members of the Bar. for the assistance they willingly gave in tackling the problem posed before us.
F.D. Desai, J.
28. I agree.
B.K. Mehta, J.
29. I agree,
30. Reference answered accordingly.