S. Murtaza Fazl Ali, J.
1. This is an application against an order of the Additional Sessions Judge Srmaaar transferring Under Section 288, Cri. P. Code the statement of Dr. Hari Krishen Koul a witness examined before the Committing Court in what is known as 'Hazratbal' murder case.
2. It appears that while the witness was being examined, he failed to identify some of the accused . which he is alleged to have done before the Committing Court. Thereupon, the prosecution filed an application before the Court for transferring the evidence of this witness before the Committing Court Under Section 288, Cri. P. C. The prayer of the prosecution found favour with the Court and the statement of the witness was transferred by the judge Under Section 288, Cri P. C. In my opinion, the order passed by the Court cannot be supported in law. Section 288, Cri. P. C. runs at follows:
The evidence of a witness duly recorded in the presence of the accused under Chapter XVIII, may, in the discretion of the presiding Judge, if such witness is produced and examined, be treated as evidence in the case for all purposes subject to the provisions of the Evidence Act 1977.
It is obvious from a perusal of Section 288, Cri. P C. that the stage for transferring the previous statement of a witness would arise only when the evidence of a particular witness has been closed. The words 'Produced and examined' clearly indicate that Section 288, Cri. P. C. comes in o play only after the evidence of a witness concerned is concluded, that is to say, after the witness has been examined in chief, cross-examined and re-examined as the case may be. The application of the prosecution before the Court was absolute) premature. Moreover, the statement of the witness could not have been transferred Under Section 288, Cri. P C. so as to be treated as evidence unless the attention of the witness was drawn to his evidence in the Sessions Court to what he had previously stated before the Committing Court. This is necessary to be done Under Section 145 of the Evidence Act. It appears that so far the attention of the witness was not drawn to that part of the earlier statement on which the prosecution sought to rely. On this ground also the order transferring the previous statement of the witness under. Section 288, Cri. P. C. was legally erroneous.
3. For these reasons, therefore, the application is allowed, the order of the Additional Sessions : Judge transferring the previous statement of the witness under. Section 288, Cri. P. C. is set aside. It will, however, be open to the prosecution to renew their prayer for transferring the statement of the witness concerned Under Section 288, Cri. P. C. after the statement of the witness is completed and if the prosecution complies with the provisions of the law.
4. I might further mention that although the prosecution has not drawn the attention of the witness in his examination in chief to his previous statement, it is yet open to the prosecution to make such a prayer with the permission of the Court in re-examination.