A.A. Dave, J.
1. This application has been filed by the petitioner against the order of the learned Sessions Judge, Banas-kantha. dismissing the revision application filed by him against the order of the learned Judicial Magistrate, First Class, Deesa. reiectine his application for production of a statement of witness recorded by the police from the custody of the learned police prosecutor.
2. The facts Hiving rise to this application raise an important duestion of law. The present petitioner is being tried before the learned Judicial Magistrate, First Class. Deesa for offences Under Sections 304A, 279 and 337 of the Indian Penal Code. After the prosecution evidence was over, the accused entered his defence and examined some -witnesses. As the prosecution did not examine certain witnesses who according to the defence were material, they were called as defence witnesses. One of such witnesses did not support the defence version. Accord ins to the petitioner, the said witness seemed to have been won over by the prosecution. He. therefore, gave an application to the court requesting that the learned police prosecutor be asked to produce the statement of the witness recorded by the investigating officer Under Section 94 of the Criminal Procedure Code. After hearing both the sides. the learned Magistrate rejected the said application. Against that order of the learned Magistrate, a revision application was filed before the learned Sessions Judge of Banaskantha who dismissed the said application. Against the said order, this revision has been preferred to this Court.
3. Mr. A. K. Mankad, learned Advocate for the petitioner submitted that Under Section 94 of the Code of Criminal Procedure, he was entitled to the production of a document in the custody of the learned police prosecutor in the interest of iustice. He urged that even the statement recorded by the police could be used by the defence for the purpose of contradicting a witness as his previous statement, Under Section 145 of the Indian Evidence Act, He urged that in the instant case, it may not be open to the prosecution to use the statement of the witness recorded by the police for cross-examining the defence witness. but Section 162 of the Code of Criminal Procedure did not preclude the defence from utilising such a statement as a previous statement of the witness for the purpose of cross-examining him as laid down in Section 145 of the Indian Evidence Act. In may opinion, it is difficult to accept the submissions made by the learned Advocate for the petitioner.. It may be noted that a statement of a witness; recorded by the police during the course of the investigation could be used only for a limited purpose as laid down in Section 162 of the Code of Criminal Procedure. Section 162 (1) states 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;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 used by the accused and with the permission of the court, by the prosecution, to contradict such witness is the manner provided by Section 145 of the Indian Evidence Act...
It will thus be clear that no statement made by a person to a police officer during the course of the investigation or any part thereof can be used for any purpose except as laid down in proviso to Section 162. It could only be used by the defence for the purpose of cross-examining a prosecution witness or by the prosecutor with the permission of the Court. Section 162 does not say that it would be open to the defence to cross-examine a defence witness by reference to his statement recorded by the police.. In my view, I am supported by the judgment of the Supreme Court in the case of Lax-man Kalu Nicely. The State of Maharashtra : 1968CriLJ1647 . wherein at page 1392 the following observations were made:
It is unfortunate that our law does not admit of cross-examination of such a witness (defence witness) in respect of statements before the police. We - endorse the action of the Sessions Judge in excluding reference to this statement in the Sessions trial.
Mr. Mankad urged that' the observations . of the Supreme Court did not in any way negative his contention that it would be open to the accused to use this statement as previous statement for the purpose of cross-examining a witness. He urged that looking to the words of Section 145 of the Indian Evidence Act, it would be open, in the interest of justice, to the accused to make use of such a statement while cross-examining his own witnesses. I am unable to agree with
Mr. Mankad in this behalf. Section 162 of the Code of Criminal Procedure is a clear bar to the use of a statement of a witness recorded by the police during the investigation except for the purpose men-Honed therein. In clear words, the section says that such a statement cannot be used for any other purpose except for the purpose of contradicting a prosecution witness by the defence or with the permission of the court, by the prosecution. It is, therefore, quite apparent that a defence witness cannot be cross-examined with reference to his police statement. The observations of the Supreme Court referred to above lend support. to this view. I am. therefore, unable to agree with the submission made by Mr. Mankad that even a police statement could be used as a previous statement for the purpose of cross-examinine a defence witness. In my opinion, Section 162, Criminal Procedure Code completely bars the use of a police statement for the purpose of contradicting a [defence witness.
4. In the instant case, the petitioner has requested the court Under Section 94, Criminal Procedure Code to direct the learned police prosecutor to produce the police statement of the defence witness which was in his possession. Normally. in the interest of justice. such a request should not be refused by the court if the production of such a document served the ends of justice. However, it is a judicial discretion and if from the circumstances of the case, the court was of the opinion that no useful purpose will be served by production of such a statement, it cannot be said that. the court had not exercised its discretion properly or that it had exercised it in an illegal and arbitrarv manner. The defence wanted a statement of the witness recorded by the police for beinS produced from the custody of the learned Police Prosecutor. A statement recorded by the police could only be used for the purpose of contradiction of a witness examined by the prosecution as laid down in Section 162 of the Code of Criminal Procedure. No useful purpose will be served by asking the learned Police Prosecutor to produce the said statement. It cannot therefore be said that the learned Magistrate had not exercised his discretion properly. I do not see any reason why I should interfere with the order of the learned Magistrate refusing to direct the learned Police Prosecutor to produce the same.
5. In the result, the petition fails and is dismissed.