Trevelyan and Rampini, JJ.
1. In this case it is complained that the accused were not allowed to use statements of witnesses taken by the Police under Section 161 of the Code of Criminal Procedure in the way permitted by law. On the 3rd February 1893, a Bench of this Court made an order in the following terms: 'Let the record be sent for, and a rule issue on the Magistrate to show cause why the conviction and sentence should not be set aside, or such order passed as to this Court may seem fit. The District Magistrate will be further requested to send, with the record, the Police diaries bearing on this matter, and to report whether, in addition to those diaries, any other record not embodied therein exists, or was made of statements taken by the Police officers from the witnesses in this case. Pending further orders in this case, the petitioners will be admitted to bail.' The documents have been sent up to us, and we have examined them. Although written in special diary form, we find they contain amongst other things, which properly form portion of a special diary taken under Section 172, statements made by the witnesses, and taken down by the inspector. Section 161 provides for the taking down of statements of witnesses by the police. Such statements are, it has been held by at least two Benches of this Court, not privileged. Section 172 shows what a special diary should contain. It is to contain the proceedings of the police officer. The section shows what kind of proceedings it is to contain. We do not think that the statement of proceedings beginning at the words 'setting forth' is exhaustive, but we do not think that the section is intended to include the statements made by witnesses on an oral examination made by a Police officer. In the first place, we do not think that the matters stated to the witnesses are a part of the proceedings of the police officer. The fact that he examined certain witnesses is a part of his proceedings, and, as the section shows, the circumstances ascertained from the examination is a part of the proceedings; but the actual statements of the witnesses are not the proceedings of the police officer. In the second place, the Legislature has expressly provided in Section 161 for the examination of witnesses, and does not make the statement taken under such examination privileged. It is only under Section 161 that a Police officer making an investigation can examine persons acquainted with the facts of the case, and reduce them into writing. It is admitted that the fact that the statement is included in the police diary can make no difference if the statement was made under Section 161. We do not see how the statement can have been taken down, except under the provisions of Section 161. In the third place, Section 161 requires a person to answer truly all questions relating to the case put to him by the officer, and he is liable to be punished if his statements are untrue. If the Legislature intended to cover with the cloak of privilege statements which might render persons liable to a criminal prosecution, they would have done so in express terms. It would be wrong to hold that a Police officer, by inserting in the special diary statements which can only have been made to him under Section 161, can protect such statements from being used in the way that the law allows, e.g., under Sections 145 and 159 of the Evidence Act. The Deputy Magistrate, in his explanation, says that the allegation, that the statements made by the witnesses were reduced into writing, 'is absolutely devoid of foundation in truth.' As we have said, the examination of the papers forwarded to us shows that the statements were reduced into writing. The allegation in the affidavit on this point is, we think, absolutely true. The statement not being privileged, the question arises whether the accused have been prejudiced by the action of the Deputy Magistrate. The Deputy Magistrate says: 'I carefully went through the diaries under Section 172, and found nothing favourable to the accused in these diaries.' We have been referred to several matters in the statements of witnesses recorded in what are called the special diaries, and we find that there are many statements which would unquestionably be of great assistance to the accused. We think, therefore, that the accused have been prejudiced by the action of the Deputy Magistrate. In our opinion, the conviction and sentence must be set aside, and we accordingly set them aside. In the circumstances of the case, we think it desirable that it should not be re-tried by Baboo Rakhal Mohan Banerjee. We direct that it be re-tried by any first class Magistrate there may be at Manbhum. At this re-trial, the accused will be at liberty to use, in accordance with the provisions of the law, the statements of the witnesses recorded by the Police.