1. In my opinion there is no ground for our interference in this case. The objection raised is, that the Deputy Magistrate refused to require the Police officer to refresh his memory from a statement of the witness which he had recorded under Section 119 of the Criminal Procedure Code. It does not appear that this Police officer, when examined as a witness, desired so to refresh his memory. I think that the accused was not entitled to insist upon the Police officer refreshing his memory by referring to his notes, because, under Section 126, he was not entitled himself to see these notes or any papers prepared in the course of a Police investigation; and Section 119 declares that  such notes shall not be treated as part of the record or be used as evidence. Reg. v. Uttamchand Kapurchand 11 Bom. H.C.E. 120 is not in point.
2. As regards the other objection taken, I have not been shown that, in the procedure taken by the Deputy Magistrate, the accused has been any way materially prejudiced in his defence. It seems to me rather, that the Deputy Magistrate had very good grounds for examining the witnesses for the defence on the day on which they attended, rather than deferring their examination until some of the witnesses for the prosecution, who were not in attendance, had appeared, so that they might be cross-examined. The application is therefore refused.
3. I entirely agree with Mr. Justice Prinsep with regard to the second point. With regard to the first point, I have a very few words to add regarding the question of refreshing the memory. I entirely agree, if I may say so, with what was decided by the Bombay Court in the case cited before us. What was decided in that case was this, that where a witness comes forward at a trial and makes a statement contradicting his statements previously made to the Police, the accused or his pleader is entitled to cross-examine him with respect to his former statement; that if he denies it may be contradicted, and that one of the ways in which he may be contradicted is by calling the Police officer before whom he made the statement, who may refresh his memory from his diary. That seems to me to be the whole of the decision of the Bombay Court. But the question now before us is not, whether the witness can be cross-examined as to his previous statement, nor whether the Police officer may be examined to contradict him, nor whether the officer may refer to his diary; but the question is, whether the prisoner has a right to insist that the diary, if not in Court, shall be sent for, or if it be in Court shall be referred to for the purpose of refreshing the Police officer's memory. I think the prisoner has no such right. I know of no authority for saying that a witness can be compelled to refresh his memory from any document, unless the document is either in the possession of the party who desires to put it to the witness, or is at least such as he can insist on having produced. This is a document which the law expressly declares that the defence has no right to see. Section 126 says: 'Any Criminal Court may send for the Police diaries of a case under enquiry or trial in such Court, and may use such diaries to aid it in such enquiry or trial.' That is the right of the Court. 'Neither the prisoner nor his agents shall be entitled to call for them, nor shall he or 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 purposes of contradicting such Police officer,' in either of these two cases the prisoner is entitled to see them; but until this is done he has no such right. Therefore, it seems to me that the decision of the Deputy Magistrate is correct.
4. I guard against saying anything as to the mode in which a Court should exercise its discretion in permitting the document to be used as indicated in the section. The question as to whether in this case that discretion has been wisely used or not is not before us.