Mitra and Holmwood, JJ.
1. This was a rule calling upon the Magistrate of Dacca to show cause why the conviction and sentence of the accused 1 and 2 under Section 143 read with Section 114 of the Indian Penal Code and of the other accused under Section 143 should not be set aside, or why such other order should not be passed as to this Court may seem proper.
2. The facts found in the Lower Courts were that accused were members of an unlawful assembly with the common object of entering with force and causing mischief and using criminal force to the shopkeepers and thereby causing damage to the bazar of Babu Bhabaranjan Banerjee.
3. The accused 3, 4 and 5 were found to have gone up into the bazar and committed rioting armed with deadly weapons. The accused 1 and 2 were found to have stood below the bazar and encouraged and directed such rioting. The first question raised before us was whether a conviction under Section 148 read with Section 114 could lie against these persons. No doubt, if they formed members of the unlawful assembly, in which force was used in pursuance of the common object, they could be convicted of rioting and of abatement of any other offence, which might be committed by the mob under their orders or instigation in prosecution of the common object; but could they, having regard to the provisions of Section 148, which confine the offence therein rendered punishable, to persons, who riot being armed with a deadly weapon, be convicted by implication under Section 114 with being present when such an offence was committed and being liable to be punished as abettors, if absent? The question was not argued before us by learned Counsel for the accused after the rule came on for hearing, though it was made much of in obtaining the rule. We do not think that this somewhat difficult question really arises in this case, inasmuch as the two accused in question have been sentenced to pay a fine of Rs. 300 each only, a punishment, which it was competent to the Lower Court to inflict under Section 147.
4. Had the question got to be answered it would seem to depend upon the circumstances whether the accused actually instigated the persons armed with deadly weapons to riot with those weapons.
5. We can see no reason why a riot should not be abetted as 'well as any other crime. The only difficulty arises from the presence of the accused at the riot, which renders them liable under Section 147 in the first instance, if they gave orders to the mob and thereby joined in the common object of the unlawful assembly.
6. The main ground that was argued before us on behalf of the petitioners was, however, whether the accused had not been seriously prejudiced by not being allowed access to the Police diaries for the purpose of proving certain statements alleged to have been made to the Police inconsistent with their statements in Court. That question we have felt it our duty to settle by a careful perusal of these diaries in comparison with the depositions in Court and the result of our investigation will appear subsequently.
7. But the question is one of great importance in regard to the practice in the mofussil in dealing with these diaries and we think it our duty to deal with this matter at some length in order to clear up a misconception, which appears to exist as to the effect of the law as laid down in Section 161 of the Criminal Procedure Code and the sections following. It appears to have become the practice of Police officers in the mofusil to hold a regular in vestigation of a quasi-judicial character in the presence of the accused and their agents. This does not seem to be contemplated by the law, which lays down that the Police officer may examine orally any person supposed to be acquainted with the facts and circumstances of the case. Such statements may be taken down in writing under the provisions of Section 162, but shall not be signed by the person making them, nor shall such writing be used in evidence; provided that, when any witness is called for the prosecution whose statement has been taken down in writing the Court shall on the request of the accused, refer to such writing and may than, if the Court thinks it expedient in the interest of justice, direct that the accused be furnished with a copy thereof and such statement may be used to impeach the credit of such witness in manner provided by the Indian Evidence Act. There is another diary kept under Section 172 and generally known as the Special Diary, in which the Police officer is required to enter his proceedings day by day and this does not, in the list of matters to be entered therein, appear to allow any oral statement of witnesses to be recorded. It is strictly privileged and may only be used by the Court, not as evidence in the case, but to aid it in the enquiry or trial, neither the accused nor his agents shall be entitled to call for such diaries nor shall they be entitled to see them merely because they are referred to by the Court; but if they are used by the Police officer, who made them to refresh his memory, or if the Court uses them for the purpose of contradicting such Police officer the provisions of certain sections of the Indian Evidence Act shall apply. Those sections are Section 161, which provides that such writing must be produced and shown to the adverse party, who may cross-examine the witness on it, or Section 145, which provides that a witness may be cross-examined as to previous statements made by him in writing, or reduced into writing without such writing being shown to him or being proved; but if it is intended to contradict him by the writing, his attention must, before the writing can be proved, be called to those parts of it, which are to be used for the purpose of contradicting him.
8. Now by a curious and rather perverted ingenuity it became the practice of the Police officers in the mofussil to incorporate oral statements made to them by witnesses in the Special Diary under Section 172 in the belief that by so doing those stutements could be kept from the knowledge of the accused.
9. In a series of decisions, 'which are too well known to require reference, it was held by this Court that such statements whether recorded in a diary under Section 172 or not, fell under the provisions of Section 162 and were liable to be produced under the conditions laid down in that section. One would have imagined that the effect of these rulings would have been to put an end to the useless and irregular practice of entering any statements of witnesses in the diary under Section 172 at all, and even now we think that an executive order giving effect to the law would. have a salutary effect,
10. But what we wish to point out is that such statements, even though entered in the diary under Section 172, are admissible under the provisions of Section 162, and of that section only, and the provisoes as to the cross-examination of the Police officer under Sections 161 and 145, which refer to his own statements, do not apply to those statements of witnesses. The proper procedure is for the accused at the time the witness, whose statement is so recorded, appears before the Court, to ask the Court to refer to such writing and, if necessary, furnish the accused with copies. This is a practice it is not difficult to carry out. It only requires a little adjustment of the time of the Court in cases where the diaries do not happen to be in Court or require translation. A strict adherence to the practice laid down in the Code is of the greatest benefit to all parties concerned and is the only way of avoiding friction. The result would be that statements really necessary to the accused's defence would rarely be kept out of the record and no question of prejudice would arise subsequently.
11. It appears to us that this is really the only way of securing the use of these statements. It was argued by learned Counsel perfectly correctly that under Section 155 of the Evidence Act, c. (8) the credit of a witness may be impeached by proof of former statements inconsistent with any part of his evidence, which is liable to be contradicted and that it is therefore open to the accused's pleader to ask the Police Officer, whether the witnesses made certain statements to him in the same way as it is open to him to ask anybody else, who may have heard the statements made. This is so, but it is of little use if, as in this case, the Police officer does not remember what was said and declines to refresh his memory from his diary. It has been laid down In the matter of the Petition of Kali Charan Chunari (1881) I.L.R. 8 Calc 154 that there is no authority for saying that a witness can be compelled to refresh his memory from any document, unless the document is either in possession of the party, who desires to put it to the witness or is at least such as he can insist on having produced.' In another case reported in the same volume, Lithe matter of the petition of Jhubboo Mahton (1882) I.L.R. 8 Calc. 739 it was further observed 'that the Sessions Judge was not bound to compel the witness to look at the so called diary in order to refresh his memory and that it was wholly within his discretion whether he should do so or not.'
12. This ruling of course only applies to the diary under Section 172, where the Police Officer can refresh his memory as to transactions of his own from day to day and as to circumstances brought to light in the course of his investigation.
13. Statements made by witnesses though entered in that diary are, as we have already remarked, only admissible under Section 162 of the Criminal Procedure Code and may not be used in evidence otherwise. It is therefore very doubtful whether a Police Officer could refresh his memory as to such statements, unless the writing is already in and had been put to the witness, who is alleged to have made the statement. And the wisdom of such a provision is obvious, when we consider that such statements are made without the sanction of an oath, without cross-examination and as a rule in secret. It would be quite unfair to accept the Police Officer's Perfunctory readings of his diary as proof of the statement when he could not remember what had been said .
14. Time out of number witnesses duly cross-examined under Section 162 on such statements succeed in showing from circumstances and dates which are clear on the face of the record that they could not possibly have made the statements attributed to them by the Police Officer. The law has therefore laid down that such statements shall not be used in evidence except in cross-examining the witnesses, who made them, with -the leave of the Court in the first instance. Of course having been so properly brought in, they can subsequently be proved by the Police Officer under the provisions of the Evidence Act expressly referred to in Section 162, if the witness denies making them. But this does not authorize their use for the first time for the purpose of refreshing the Police Officer's memory.
15. In the case before us the Court was not moved under Section 162, when the first prosecution witness, whom it was subsequently desired by the defence to test by reference to his statement recorded in the diaries, appealed in the box. After the prosecution witnesses bad all been examined the defence moved the Court to examine the Sub-Inspector as a Court witness and on this being refused they applied to the Court to summon the Sub-Inspector to appear with his diary as a witness for the defence. This application was obviously under Section 172 and the diary could only be used by the Sub-Inspector for refreshing his memory on his own proceedings and on circumstances which came to his knowledge during the course of his investigation, or they could be used by the Court for the purpose of contradicting the Sub-Inspector as to any of his own statements. They could not in our opinion be used for the purpose of proving statements made by witnesses to the Sub-Inspector under Section 161. Even at that late stage of the case, if the Magistrate on perusing the diaries found that it was expedient in the interests of justice to make use of such statements to impeach the credit of the witnesses, he could no doubt have directed the recall of such witnesses, furnished the accused with copies of the statements and permitted further cross-examination, but this would be a most unusual practice and highly inconvenient and nothing could justify it but the clearest conviction in the mind of the Magistrate that a miscarriage of justice would otherwise result. The learned Sessions Judge on appeal rightly held that it would have been a wise discretion on the part of the Magistrate to have at least perused the diaries carefully himself before declining to take any action. He therefore supplied the omission of the Lower Court by perusing the diaries himself and came to the conclusion that the diaries were bond fide diaries under Section 172 and not under Section 161 and that their contents satisfied him that the Magistrate might well have refused to order the Sub-Inspector to consult the diaries.
16. He bases this finding however not on the true reason that there was nothing in the diaries that could materially help the accused or that the statements were not admissible in evidence, except under the provisions of Section 162, but on the above erroneous finding that there was nothing in the diaries that does not properly fall under Section 172 and that many of the questions asked to the Sub-Inspector were improper.
17. We do not quite understand what was moving in the mind of the learned Sessions Judge in coming to these findings. To begin with, there are clear statements of witnesses incorporated in the diary under Section 172, which certainly bring them under the provisions of Section 161, and secondly the impropriety of any questions, which may have been asked to the Sub-Inspector, could not possibly have any bearing on those statements. If they were admissible, that is, if the learned Judge thought that it was expedient in the ends of justice that the prosecution witnesses should be recalled and the statements put to them, no subsequent questions put to the Sub-Inspector for the purpose of eliciting what those statements were, could be rightly called improper, But as this had not been done, any question to the Sub-Inspector as to what those statements were, was inadmissible and the learned Judge had only to consider whether there was any such necessity for proving these statements in the interests of the accused as would justify him in ordering a remand for the purpose of recalling the prosecution witness and putting those statements to them. This is also the only question that we have to decide on this rule and we have therefore carefully perused the statements contained in the diaries and compared them with the recorded evidence of each of the six witnesses in respect of whom learned Counsel argued that there should have teen a remand. [Their lordships compared the statements contained in the diaries with the recorded evidence of the witnesses and then observed as follows: ]
18. On the whole evidence we think there is nothing in the Police papers to justify the rejection of the depositions of the witnesses in Court and that the perusal of it by the learned Sessions Judge and his findings thereon, though not happily worded, are sufficient for the adjudication of the points, supplemented as it has been by our own detailed examination of the evidence and the police papers. We do not think we should interfere with either the convictions or sentences. The actual assailants in a very bad riot where wanton mischief was caused to a wholesome and necessary article of popular diet and to the shops of peaceful traders, the shop-keepers themselves being beaten and illtreated, have been sentenced to only 4 months' rigorous imprisonment and the two men, who gave orders from below, have been fined Rs. 300 each.
19. We do not think these sentences are too severe. We accordingly discharge the rule and direct that the prisoners, who have been admitted to bail, do surrender to the Magistrate and serve out the rest of their sentences and that the fines of Dadan Gazi and Saroda Chatterjee, if not already paid, be levied according to law.