NATHU MANCHHU v. STATE — 1977 DIGILAW 42 (GUJ)

D. P. DESAI, J. ( 1 ) THE following questions have been referred to this Full Bench by the Division Bench:- (1) Is the evidence of a witness whose statement recorded in the course of investigation under Chapter XII of the Criminal Procedure Code if read over to him before the witness steps into witness box becomes inadmissible or such as would be of no value whatsoever ? (2) Does such contravention of sec. 162 (1) effect admissibility or probative value of the evidence of such a witness ? (3) Does reading over of such statement to a witness before he enters witness box amount to use of such statement contrary to sec. 162 (1) ? These questions have arisen in the following circumstances:- ( 2 ) IN sessions case No. 4 of 1976 from which this appeal arises two witnesses for the prosecution name Limji Ukad P. W. 10 Ex. 17 and Chhaganbhai Vishalabhai P. W. 11 Ex. 18 were called to prove an extra judicial confession alleged to have been made before them by the accused. In the course of cross-examination Limji Ukad stated that in the morning of the day of his deposition his statement was read over to him by police and the police told him to give evidence in accordance with his police statement. In the course of cross-examination he denied the suggestion that he was falsely involving the accused; and added that he had stated what and happened. ( 3 ) THE other witness Chhaganbhai Vishalbhai said in his cross-examination that police had read over to him in that morning his statement recorded by police and police told him to give evidence according to what he knew. He asserted that police had not told him to give evidence according to the it police statement. ( 4 ) IN this appeal it was contended before the Division Bench on behalf often accused appellant that reading over of the police statements to the respective witnesses amounted to use of police statements contrary to the provisions of sec. He asserted that police had not told him to give evidence according to the it police statement. ( 4 ) IN this appeal it was contended before the Division Bench on behalf often accused appellant that reading over of the police statements to the respective witnesses amounted to use of police statements contrary to the provisions of sec. 162 (1) of the (Code of Criminal Procedure 1973 (the Code) and therefore the entire evidence of these two witnesses was inadmissidle Reliance in this connection was placed on a decision of the Privy Council reported as ZAHIRUDDIN V. EMPEROR A. I. R. 1947 P. C. 75 and the decision of a Division Bench of the Bombay High Court in STATE V. MAGANBHAI ZAVERBHAI AND OTHERS Criminal Appeal No. 460 of 1953 decided by Bavdekar and Vyas JJ on September 29 1953 It was pointed out that a similar state. ment was made by witness Bai Sabu in her cross-examination and her evidence was held inadmissible. It was also pointed out that in the context of a similar statement made by one witness Ladha Jivraj a Division Bench of this High Court consisting of Divan and J. B. Mehta JJ. followed the aforesaid two decisions and held the evidence of Ladha Jivraj inadmissible. This decision was rendered in the case of KATHI MOTI LAKHA AND TWO OTHERS V. THE STATE OF GUJARAT CRIMINAL APPEAL NO. 543 OF 1962 DECIDED ON 21/22nd NOVEMBER 1963. The Division Bench in the present appeal referred to another decision of a Division Bench of this Court in KAMBI VAGHAJI V. STATE A. I. R. 1968 GUJARAT 11; and it was of the view that there is an apparent conflict between the decisions of the two Division Benches of this court. Therefore it has made this reference. ( 5 ) TO my mind the questions referred are of general importance and need a final and authoritative answer based on the correct interpretation of the prohibition against use of police statements enacted in sec. 162 (1) of the Code. If they are not answered finally there would be scope for uncertainty as to the correct legal position. ( 5 ) TO my mind the questions referred are of general importance and need a final and authoritative answer based on the correct interpretation of the prohibition against use of police statements enacted in sec. 162 (1) of the Code. If they are not answered finally there would be scope for uncertainty as to the correct legal position. Besides in any case the decision of the Division Bench of this Court in Kathi Moti Lakhas case which held the substantive evidence given by a witness wholly inadmissible merely because the police statement was read over to the witness and he was told to depose accordingly does speaking with respect require recon- sideration and in this context the decision of the Division Bench of the Bombay High Court in STATE V. MAGANBHAI also speaking with respect requires reconsideration. In my view the consequences if these two decisions in actual practice would be far fetched in the administration of criminal justice in this State. I am therefore of the opinion that the questions referred must be decided in the interests of administration of justice ( 6 ) IN order to facilitate the enquiry as to the Correct interpretation of sec. 162 (1) the following five illustrative cases will be useful:- (1) A case in which there is mere reading over of the statement before police to the witness before he enters the box without giving him any instruction as to what he should depose. (2) In a case falling under No. 1 above the witness is told to give evidence as to what he had actually seen. (3) In a case falling under No. 1 above the witness is instructed to give evidence accordingly. (4) In a case falling under No. 3 above the witness tells the police office that he will not give evidence accordingly but give truthful evidence of what he had seen. (5) In a case of falling under No. 3 above the witness agrees to give evidence accordingly and tells in cross examination that he has given evidence accordingly. (4) In a case falling under No. 3 above the witness tells the police office that he will not give evidence accordingly but give truthful evidence of what he had seen. (5) In a case of falling under No. 3 above the witness agrees to give evidence accordingly and tells in cross examination that he has given evidence accordingly. Sec. 162 of the Code reads as under:-169 (1) No statement made by any person to a police officer in the course of an investigation under this Chapter shall if reduced to writing be signed by the person making it nor shall any such statement or any record thereof whether in police diary or otherwise or any part of such statement or record be used for any purpose have 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 of 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 in the manner provided by sec. 145 of the Indian Evidence Act 1872 and when any part of such statement is so used any part thereof may also be used in the re-examination of such wit. ness but for the purpose only of explaining any matter referred to in his cross- examination. (2) Nothing in this section shall be deemed to apply to any statement falling within the provisions of clause (1) of sec. 32 of the Indian Evidence Act 1872 or to affect the provisions of sec. 27 of that Act. Explanation-An omission to state a tact or circumstance in the statement referred to in sub-sec. (1) may amount to contradiction if the same appears to be significant and otherwise relevant having regard to the context in which such omission occurs and whether any omission amounts to a contradiction in the particular context shall be a question of fact. Explanation-An omission to state a tact or circumstance in the statement referred to in sub-sec. (1) may amount to contradiction if the same appears to be significant and otherwise relevant having regard to the context in which such omission occurs and whether any omission amounts to a contradiction in the particular context shall be a question of fact. ( 7 ) AS observed by the Supreme Court in TAHSILDAR SINGH V. STATE OF U. P. A. I. R. 1959 S. C. 1012 the object of the main section is to impose a general bar against the use of Statement made before police (vide para 16 at p. 1022 ). The words for any purpose would suggest the width of amplitude of the bar but these words have to be read in the context they occur along with the proviso and sub-sec- (2 ). The Supreme Court in the aforesaid decision indicated the Correct rule of interpretation in para 14 in the following terms : the proper course is to apply the broad general rule of construction which is that a section or enactment must be construed as a whole each portion throwing light if need be on the rest. The true principle undoubtedly is that the sound interpretation and meaning of the statute on a view of the enacting clause saving clause and proviso taken and construed together is to prevail. ( 8 ) THERE are two possible interpretations which call for consideration And they are: (1) in all such cases as contemplated by the questions referred to the Full Bench (which according to me will also include illustrative case Nos. 1 to 5 above) there is no use of the police statement as contemplated by sec. 162 (1) and therefore the substantive evidence given by a witness on oath before the Court does not become inadmissible. In these cases it is only the probative value of such evidence which may be affected depending upon the facts and circumstances of each case; and (2) in the aforesaid cases the police statement has been used within the meaning of sec. 162 (1) and therefore the substantive evidence of the witness becomes inadmissible. In the alternative in any case the substantive evidence becomes inadmissible if not in case Nos. 1 to 4 individually in a case which falls under No. 5 read with Nos. 1 and 3. 162 (1) and therefore the substantive evidence of the witness becomes inadmissible. In the alternative in any case the substantive evidence becomes inadmissible if not in case Nos. 1 to 4 individually in a case which falls under No. 5 read with Nos. 1 and 3. We have to find out which is the sound interpretation of sec. 162 (1) applying the aforesaid test of construction. ( 9 ) NOW reading the provisions of sub-sec. (1) together with the proviso and sub-sec. (2) the following picture emerges: (1) There is a general bar against the use of police statement for any purpose not anywhere but at an inquiry or trial in respect of any offence under investigation at the time when such statement was made. (2) The proviso makes exception to the bar against user in cases where the witness is called for the prosecution and is to be contradicted in accordance with the provisions of sec. 145 of the Indian Evidence Act 1872 Hence again if the witness is not confronted with the police statement under sec. 145 of the Evidence Act no portion of his police statement can be proved subsequently to show the contradiction. In fact the statement cannot be proved independently to discredit the witness under sec. 155 (3) of the Evidence Act. Similarly it cannot be used to contradict a witness not called for the prosecution but for the defence or by the Court (See Tahidar Singh (supra) ). (3) The statement can be proved as a substantive piece of evidence in cases falling under see. 32 (1) and 27 of the Evidence Act. ( 10 ) THUS in enacting the exceptions contained in the proviso and sub-sec. (2) the Legislature had the Evidence Act in mind. Obviously this would be so because all enquiries and trials under the Code were and are governed by the Evidence Act. Thus in enacting the general bar against use of police statements the Legislature was enacting against use of the police statement at an inquiry or trial governed by the pro visions of the Evidence Act. The words used for any purpose at any inquiry or trial have to be construed in this context which emerges as a result of reading of the section as a whole including the proviso and sub-sec. (2 ). What is the meaning of the words used at any enquiry or trial? The words used for any purpose at any inquiry or trial have to be construed in this context which emerges as a result of reading of the section as a whole including the proviso and sub-sec. (2 ). What is the meaning of the words used at any enquiry or trial? To me it is evident that the user contemplated is actual user in the proceedings in the Court. It is in case of such user that you can say that the police statement has been used at the enquiry or trial. ( 11 ) THIS user in court proceedings may take various forms resulting in an attempt. (1) to contradict a defence or court witness. (2) to corroborate the prosecution witness under sec. 157 of the Evidence Act. (3) to impeach credit of the witness under sec. 155 (3) of the Evidence Act. (4) to refresh memory of the witness under sec. 159. (5) to prove an admission by the accused of an incriminating fact (not amounting to confession) under sec. 21 of the Evidence Act. (6) to explain away certain facts brought out in cross-examination of the witness (7) to correlate sequence of events which took place before at the time of and after the incident. (8) to show to the court without confronting the witness that the witness has resiled from his police statement and was therefore won over by the defence. (9) to show that the explanation given by the accused at the time of the statement before police was quite different from the explanation given at the trial. It must be borne in mind that sec. 162 refers to statement made by any person which would include the statement made by a person who subsequently becomes an accused or the statement by a person who is accused of the offence when the statement is recorded. ( 12 ) PRECISELY the words for any purpose have been used to cover also user for a purpose which is not contemplated by the Evidence Act. But all the same the user contemplated by the Legislature is actual user in court proceedings and not user de hors the court proceedings. Everyday the court proceedings begin when the court starts hearing a case and end when the court stops the proceedings and adjourns them to the next day ar some other day. But all the same the user contemplated by the Legislature is actual user in court proceedings and not user de hors the court proceedings. Everyday the court proceedings begin when the court starts hearing a case and end when the court stops the proceedings and adjourns them to the next day ar some other day. It is this user which the court can itself see and prevent at the right moment which is contemplated by the general bar against user contained in sec. 162 (1 ). If the court prevents the prohibited user at the right time no body can say that on account of an unsuccessful attempt at user of the statement in the court proceedings the substantive evidence given by the witness has become inadmissible. It is again not every isolated actor user in court proceedings which makes entire evidence of the witness inadmissible. Thus if the police statement is brought on record to corroborate the testimony of the witness under sec. 157 of the Evidence Act or to impeach his credit under sec. 155 of the said Act the said statement can be excluded from evidence and not the entire substantive evidence of the witness. It is the effect of the user in the court proceedings contrary to the prohibition contained in sec. 162 (1) which has to be considered. Thus in Zahiruddins case before the Privy Council (supra) the frequent material and substantial use of police statement made by the witness while giving evidence made it impossible to find out which part of the evidence the witness stated from his memory and on which part he refreshed his memory by the police statement in contravention of the bar. The effect of this gross and in a way unprecedented and unchecked user was to render the entire testimony of the witness inadmissible. It may not be out of place to state here that the use in Zahiruddins case was also actual user of the statement in the court proceeding when the witness gave evidence. The effect of this gross and in a way unprecedented and unchecked user was to render the entire testimony of the witness inadmissible. It may not be out of place to state here that the use in Zahiruddins case was also actual user of the statement in the court proceeding when the witness gave evidence. ( 13 ) IT is noteworthy that except the decision of the Division Bench of the Bombay High Court and this High Court which have occasioned this reference not a single case of user of police statement outside the court proceedings was cited at the Bar even though members of the Bar were permitted to intervene and some senior members did intervene and made their submission. As against this there are cases which dealt with user of police statement in the court proceedings. The Privy Council decision aforesaid is one of them. Another case is KALI RAM V. STATE of witness during investigation containing din extra judicial confession by the accused was brought on record as tx. P EEE. The Supreme Court held that the letter amounted to a police statement and was inadmissible under sec. 162. In SAT PAUL V. DELHI ADMINISTRATION (1976) I. S. C. C. 727; the High Court used the police statements of two witness duly proved and brought on record under the proviso sec. 162 for the purpose of finding support to the version given by three other witness sec. (para 11) The Supreme court held that such use was not permissible under sec. 162 the Code (vide para 53 ). This case illustrates that a statement brought on record in accordance with law was sought to be used for a purpose not contemplated by the Evidence Act and amply justifies the use of the words for any purpose in the prohibition clause. The purpose may be any purpose but the user for that purpose must be actual user in the court proceedings. ( 14 ) LET us now consider the second interpretation. In the first place it must be remembered that sec. 162 deals with use of police statement and not admissibility of substantive evidence given by the witness. In a given case like the one before the Privy Councils the effect of contravention of the bar created by sec. 162 (1) may result in rendering the entire oral testimony by a witness inadmissible. 162 deals with use of police statement and not admissibility of substantive evidence given by the witness. In a given case like the one before the Privy Councils the effect of contravention of the bar created by sec. 162 (1) may result in rendering the entire oral testimony by a witness inadmissible. Really the case before the Privy Council was a gross case in which there was flagrant violation of the bar enacted by sec. 162 (1) in a court proceeding in the very presence of the Magistrate. The Privy Council while dealing with reason given by the High Court in accepting Roys evidence also said.-IT is impossible to say what Mr. Roys evidence would have been if he had not used the statement to aid his memory. . . . (Para 10)IN that case the effect of contravention of sec. 162 (1) was judged. It is therefore clear that in illustrative cases Nos. 1 and 2 you cannot discard the substantive evidence given by the witness at the trial out of hand on the plea that the evidence was inadmissible by the use of the police statement. The same reason would apply to case No. 4. If this reasoning is correct one conclusion is clear. Mere reading over of the police statement to the witness before he enters the box does not amount to contravention of the bar so as to render the evidence of a truthful and honest witness inadmissible. In the third instance the witness though instructed to give evidence accordingly may not in point of fact have given evidence accordingly. He may have given different details in respect of some of the matters relating to the incident. Unless therefore the Judge in order to decide upon the admissibility of the evidence of the witness sets himself to the task of comparing the evidence of the witness with his police statement nothing can be done. And to compare the police statement with the evidence in order to find out whether the witness had given evidence accordingly in itself amounts to user of the police statement in the court proceedings contrary to the bar. It is futile to make a further enquiry in case Nos. 1 to 4 to find out whether the witnees has given evidence according to the police statement in order to decide whether his evidence is admissible. It is futile to make a further enquiry in case Nos. 1 to 4 to find out whether the witnees has given evidence according to the police statement in order to decide whether his evidence is admissible. I should therefore find no difficulty in holding that in none of case Nos. 1 to 4 question of inadmissibility of the substantive evidence of the witness arises. The question no doubt will arise as to the probative value to be attached to the evidence of such Witness. Let us now turn to case No. 5 and find out whether the said case will impel us to give different meaning to the words of prohibition contained in sec. 162 (1 ). ( 15 ) IN case No. 5 all that the evidence would show is that the witness had agreed to give evidence accordingly and tells the court that he has given evidence accordingly. By this statement before the court no part of police statement is brought on the record of the case; nor has the witness while in the box refreshed his memory under sec. 159 of the Evidence Act. It is only the cryptic word accordingly selected carefully by an intelligent cross-examiner which creates an impression that the witness has merely reproduced the statement before police. The Judge in an attempt to hold the evidence of the witness inadmissible takes the further (and in my view unjustified) step of inferring that by a process of quick memorisation the witness has been able to reproduce before the court his statement before police. In the Bombay decision of the Division Bench Vyas J. considered memorisation of a very short statement read over to the witness just before he entered the box probable. It is not my intent to contradict this probability. But I am reminded of the words of Ray C. J. (as he then was) in the well known Habeas Corpus case uttered in another context:extreme examples tend only to obfuscate reason and reality (A. D. M. JABALPUR V. SHIVKANT SHUKLA (1976) 2 S. C. C. 521 AT PAGE 572 PARA 36.)IN fact by resorting to this very process of extreme example in order to refute the aforesaid statement of Vyas J one may conceive of a case when a witness is indifferent when his police statement is being read over to him. No purpose can be served by resorting to such extreme examples. ( 16 ) NOW in considering case No. 5 let us have before us a section of witnesses who are not uncommon in criminal trials. They are backward ignorant unwary witnesses not accustomed to understand the import of carefully selected words in cross- examination but still are truthful and honest witnesses. They may hail from far of villages or forest areas. These truthful and honest witnesses naturally have given truthful account of what they had seen in their statements before police. Before they enter the box their police statements are read over to them and they are told to give evidence accordingly. Having found that the police statements contain the truthful account of what they had seen they agree to give evidence accordingly. These witnesses when asked whether their police statements were read over to them and they were asked to give evidence accordingly would naturally reply in the affirmative. Then they would be asked whether they agreed to give evidence accordingly and they would say yes. Then follows the damaging question. Have you given evidence accordingly ? Do we expect the witness to be alert at that stage discern the trap laid in this seemingly simple question and give a reply I have not given evidence accordingly if you mean thereby that I reproduced the police statement but I have given evidence of what I had seen personally? If not discerning the trap laid by this seemingly simple question the witness replies to the question in the affirmative do we hold thereby that the witness has merely reproduced the police statement and has no personal knowledge about the incident. It is said that an attempt by the Public Prosecutor to ascertain from the witness in re-examination whether he gave evidence from his personal knowledge would solve the deadlock created in the cross-examination. I do not know how. On the record the cross-examination and re-examination both stand and the Judge is called upon to decide the question of admissibility of the evidence of the witness. It is not as if the re-examination alone is to be read for deciding the question of admissibility. I do not know how. On the record the cross-examination and re-examination both stand and the Judge is called upon to decide the question of admissibility of the evidence of the witness. It is not as if the re-examination alone is to be read for deciding the question of admissibility. I fail to see how can a Judge decide the question of admissibility even after reading the evidence of the witness as a whole unless he takes the police statement in hand and sets himself to the task of comparing the evidence given by the witness in the box with the police statement. And is it not possible that the evidence of a truthful and honest witness who has given a truthful account of the incident in his police statement would accord with his police statement ? ( 17 ) LET me point out another consequence of holding in case No. 5 that the of the witness given on oath before the court is inadmissible and wiped out evidence from the record. This consequence is so damaging to the administration of criminal justice that it came to the forefront of my mind on the very day the matter began. It is not uncommon to find prosecution witnesses won over by the defence. These witnesses have seen the incident and have personal knowledge about the same. They have given a correct account of the same before police. Present practice is that these witnesses resale from their police statements and give evidence contrary to the same in chief examination. The Public Prosecutor declares them hostile and cross-examines them which is not necessarily limited to contradicting them with their police statement. In the course of cross-examination the Public Prosecutor with the permission of the court contradicts them by their police statement. The Public Prosecutor may succeed as a result of cross-examination to bring on record same material which he may ask the court to accept at the time of arguments. It is well settled that part of the testimony of a hostile witness can be accepted subject to certain safeguards (vide SAT PAUL V. DELHI ADMINISTRATION (1976) 1 S. C. C. 727 A good defence lawyer would get a very formidable weapon in his armoury now when he has to handle a witness won over by the defence. The witness need not resile from his police statement. The witness need not resile from his police statement. In chief examination now he would give evidence of what he had seen. The Public Prosecutor having questioned the witness to the end of the story will hand him over to the defence for cross-examination in the belief that the witness has supported the prosecution. And the able defence lawyer will put to him the following four questions in cross-examination: (1) Was your police statement read over to you today before you entered the box ? (2) Were you told to give evidence accordingly ? (3) Did you agree to give evidence accordingly ? (4) Have you given evidence accordingly ?the witness who has been won over will answer all these questions in the affirmative. What can the prosecutor do in re-examination in such a situation ? When the evidence of the witness is over the defence lawyer will get up and seek the ruling from the court that the whole evidence of the witness is inadmissible because his police statement has been used at the trial for a prohibited purpose. The witness would be spared the odium of cross examination by the Public Prosecutor and contradiction by his police statement. His conscience is satisfied that he has not given false account of the version. The purpose of the defence is also served. It is only the administration of criminal justice which suffers and may conceivably be even ridiculed on the basis that even though evidence was given on oath about the occurrence still by some principle of law unknown to the untrained mind of a layman that evidence was not acted upon by the court. This damaging consequence justifies in my opinion a constructive and purposeful approach in the interpretation of sec. 162 of the Code. The approach which safeguards the interests of the accused and at the same time prevents shutting out of substantive evidence of prosecution witnesses would lead to the sound interpretation of the provision of the statute under consideration. By the interpretation pointed out earlier the interests of the accused are not jeopardised; because in illustrative case Nos. 1 to 5 the question of probative value to be attached to the evidence of such a witness will remain open for examination by the court. By the interpretation pointed out earlier the interests of the accused are not jeopardised; because in illustrative case Nos. 1 to 5 the question of probative value to be attached to the evidence of such a witness will remain open for examination by the court. In the facts and circumstances of a given case the court may hold that the probative value of the evidence of such a witness is nil. In another case the court may think fit to act upon such evidence. Thus by holding on the aforesaid interpretation that the evidence of such a witness is admissible the interest of the accused is not seriously jeopardised. Whereas on the other inter- pretation the evidence of the witness is discarded in limine from consideration on the ground that it is inadmissible. The court refuses to apply its mind to such evidence though it is given by a competent witness on oath and was open to being tested by cross-examination. To extend the ratio of the decision of the Privy Council to use of police statement de hors the court proceedings when the court has not assembled and the witness is not in the box on the supposition that thereby the interests of the accused are further protected will not only be unreal and unjustified by the language of sec. 162 (1) but will lead to shutting out of the evidence of a truthful and honest witness and result in consequences damaging to the administration of criminal justice as pointed out above. Today administration of criminal justice also occupies a prime place in the social order of our welfare State. Our State is not merely a police State now concerned mainly with the function of preserving law and order in the society. Legislation is resorted to as part of welfare activity of the State to check economic offences offences against public health hygiene and morals And all these offences are ordinarily tried under the procedure laid down under the Code and recording of evidence is governed by the provisions of the Indian Evidence Act. Many of these offences (which are cognizable) are investigated in accordance with the provisions of Chapter XII of the Code. These considerations also fortify the aforesaid approach. ( 18 ) ). Many of these offences (which are cognizable) are investigated in accordance with the provisions of Chapter XII of the Code. These considerations also fortify the aforesaid approach. ( 18 ) ). The second interpretation which makes the substantive evidence of witness inadmissible at the trial is based on occurrence of facts outside the court room prior to the witness having entered the box. These facts are objective facts on the establishment of which according to the second interpretation the evidence given by the witness becomes inadmissible. These objective facts are three viz. (i)reading over of the police statement to the witness outside the court room before he enters the box; (ii) instructions given to the A witness by the police to give evidence according to the statement and (iii) agreement of the witness to do so. Now in a given case a witness may deny occurrence of all the aforesaid 3 facts and the defence lawyer maintains that these three facts have occurred and he has evidence to prove the same. Is the court in such situation to enter into a subsidiary inquiry as to occurrence of these facts in order to hold that substantive evidence given by the witness before court has become inadmissible ? One may try to answer this question by saying that the evidence to contradict the answers given by the witness in the course of cross-examination is not admissible. This is no doubt normally so. But then here the evidence would tend to establish all these facts which if established would render the evidence inadmissible. Therefore the purpose of giving evidence is not to contradict evidence given by a witness but to establish all these facts on the basis of which on the strength of the second interpretation the defence can say that there is contravention of the bar created by sec. 162 (1) and therefore the substantive evidence becomes inadmissible. Therefore the purpose of giving evidence is not to contradict evidence given by a witness but to establish all these facts on the basis of which on the strength of the second interpretation the defence can say that there is contravention of the bar created by sec. 162 (1) and therefore the substantive evidence becomes inadmissible. To my mind the legislature could never have contemplated such a situation leading to subsidiary inquiry on collateral facts in the course of an inquiry original while enacting the bar in question ( 19 ) REVERTING to the question which of the two interpretations mentioned earlier should be accepted we must bear in mind the following basic features: (1) Statement (oral or reduced to writing) made by a witness is a previous statement of the witness as known to the law of evidence contained in the Indian Evidence Act. (2) All enquiries and trials under the Code are governed by the provisions of the Evidence Act which inter alia deal with admissibility and use of previous statement. The previous statement may be of a dead person it may of a person who is or subsequently becomes the accused or it may be of a witness. (3) Secs. 21 32 145 155 157 159 and 160 are some of the sections of he Evidence Act which deal with admissibility and use of previous statements. It may be stated that the previous statement of the accused which does not amount to a confession before police officer and which is made prior to the investigation can be proved as containing admission of an incriminating fact under sec. 21 of the Evidence Act (See VEERA IBRAHIM V. STATE OF MAHARASHTRA (1976) 2 S. C. C. AT P. 309 PARA 23 ). This sec. 21 is invoked in criminal cases also in respect of previous statement made by the accused. (4) Out of the aforesaid group of sections secs. 21 32 155 and 157 would make previous statements admissible in evidence in the absence of the bar created by sec. 162 (1 ). Similarly secs. 145 159 and 160 contemplate actual use of the previous statement while the witness is in the box. ( 20 ) NOW in the absence of the bar created by sec. 21 32 155 and 157 would make previous statements admissible in evidence in the absence of the bar created by sec. 162 (1 ). Similarly secs. 145 159 and 160 contemplate actual use of the previous statement while the witness is in the box. ( 20 ) NOW in the absence of the bar created by sec. 162 (1) of the Code all these previous statements made during the course of an investigation under Chapter XII could either have been brought on record under secs. 21 155 and 157 of the Evidence Act or could have been used while the witness was in the box for the purpose mentioned in secs. 145 159 and 160. Permitting such wide use of the previous statement recorded in the course of investigation under Chapter XII would have considerably affected adversely the interests of the accused. The Legislature thinking that such previous statements; were not made under circumstances inspiring confidence (to quote Suba Rao J. from Tahsildar Singhs case (supra) imposed the ban on the use of these statements at the trial which but for the prohibition could have been used to the detriment of the accused at an enquiry or trial under the provisions of the Evidence Act. In making exceptions to the bar also the Legislature had in mind the provisions of Evidence Act only. The object of the Legislature was to see that the prohibited statements are not actually used in the proceedings before the court whether for the aforesaid purposes under the Evidence Act or for any other purposes some of which have been illustrated earlier. The object was not to shut out substantive evidence given by competent witness at the trial on the basis of user of the statements de hors the proceedings before the witness entered the box. In my opinion and speaking with great respect to the learned Judges who took a contrary view it would be straining the language of sec. 162 (1) to an unreasonable limit to shut out substantive evidence given by a witness on the basis of case No. 5 set out earlier. My reason for this view is that the statement is not used at an enquiry or trial as understood in the sense of actual use in the proceeding before the court. 162 (1) to an unreasonable limit to shut out substantive evidence given by a witness on the basis of case No. 5 set out earlier. My reason for this view is that the statement is not used at an enquiry or trial as understood in the sense of actual use in the proceeding before the court. The attempt in case No. 5 is to tutor the witness and that factor no doubt goes to the probative value of evidence of the witness and not to admissibility of the substantive evidence given on oath before the court. In a given case the credibility of the witness may be held wholly shaken keeping in mind facts of each case including the type of the witness that the court has to deal with. In a given case the court may in the circumstances of that case decline to give importance to this attempt to tutor the witness and act upon his evidence. But in no case the substantive evidence given by the witness covered by case Nos. 1 to 5 can be held inadmissible. That was not the subject with which the Legislature enacted the prohibition contained in sec. 162 (1 ). . ( 21 ) IN my opinion therefore the use prohibited is me use which could have been made of the previous statement in the proceeding before the court. Let us now see whether the decision of the Privy Council in Zahiruddins case (supra) would run counter to this interpretation. If it does I am in duty bound to follow it and lay down that the substantive evidence of the witness becomes inadmissible. ( 22 ) IN Zahiruddins case the question arose as regards the evidence of one Mr. Roy a Magistrate whose services as a witness were obtained at a trap laid by the police and who had given a signed statement to the police during investigation. The trial Magistrate at the end of the evidence of Mr. Roy made the following note: he refreshed his memory from time to time. by consulting his written statement to the police during investigation. One of the two contentions submitted to the Privy Council on behalf of the appellant accused as contained in para 9 will bear repetition:- and alternatively that Mr. Roy made the following note: he refreshed his memory from time to time. by consulting his written statement to the police during investigation. One of the two contentions submitted to the Privy Council on behalf of the appellant accused as contained in para 9 will bear repetition:- and alternatively that Mr. Roys evidence was rendered inadmissible for either of two reasons; first because he had previously given a signed statement to the police and second because in giving his evidence he made use of the signed statement to prompt his memory. (Emphasis supplied)THE Privy Council in terms stated in the beginning of para 9 that the question concerns the effect of sec. 162 (1) Criminal P. C. The Privy Council found no difficulty in rejecting the first part of the contention based on the signed statement of Mr. Roy. On the second question the Privy Council took note of the fact that the note made by the Magistrate disclosed that Mr. Roy while giving his evidence made substantial and material use of the signed statement given by him to the police. This was taken as a finding of fact. It is in this context that the follow ing observations were made in para 9 :-The use by a witness while he in giving evidence of a statement made by him to the police raise different considerations. The categorical prohibition of such the would be merely disregarded if reliance were to be placed on the evidence of a witness who had made material use of the statement when he was giving evidence at the trial When therefore the Magistrate or presiding Judge discovers that a witness has made material use of such a statement it is his duty under the section to disregard the evidence of that witness as inadmissible. . . . The Magistrates reason for doing so is too broadly stated for it is not the mere fact that Mr. Roy had signed the statement but the fact that he had it before him and consulted it in the witness box that renders the evidence incompetent. (Emphasis supplied) ( 23 ) THESE observations do not run contrary to the above interpretation of sec. 162 (1 ). On the contrary speaking with respect they are consistent with the said interpretation. The police statement was used by Mr. (Emphasis supplied) ( 23 ) THESE observations do not run contrary to the above interpretation of sec. 162 (1 ). On the contrary speaking with respect they are consistent with the said interpretation. The police statement was used by Mr. Roy in the proceeding before the court as if he was entitled to do so under secs. 159 and 160 of the Evidence Act. ( 24 ) TO my mind the ratio laid down by the Privy Council cannot be extended to cases covered by the questions referred to this Full Bench. In this context the following observations of the Supreme Court are quite apposite :-A decision is only an authority for what it actually decides. What is of the essence in a decision is its ratio and not every observation found therein nor what logically follows from the various observations made in it (vide STATE OF ORISSA V SUDHANSU SEKHAR A. I. R. 1968 S. C. 647 AT 651 PARA 13 ). ( 25 ) WE may now examine the decision of the Division Bench of the Bombay High Court in STATE V. MAGANBHAI JHAVERBHAI AND OTHERS Criminal Appeal No. 701 of 1953 decided by Vyas and Bavdekar JJ. on September 29 1953 The learned Judges were considering the evidence of one Bai Sabu daughter of Kashia Khalpa. Her evidence would have connected the accused of that case with the offence of murder under consideration. Her case was that while she was preparing loaves the deceased all of a sudden hurriedly entered her house and ran into the backyard in a bleeding condition. He was closely followed into the backyard by the six accused who were armed. Thereupon she was terrified and ran away from the house. It was found that her police statement was read out to her before her evidence was recorded in the Committing Magistrates Court as well as Sessions Court. Her statement was recorded under sec. 164 of the Code by a Magistrate and before that also her police statement was read out to her. The case would fall under case No. 1 of the five illustrative cases set out earlier. Vyas J. was of the view that on account of reading out of her police statement at three stages her evidence was inadmissible in view of the decisions of the Privy Council in Zahiruddins case (supra ). The case would fall under case No. 1 of the five illustrative cases set out earlier. Vyas J. was of the view that on account of reading out of her police statement at three stages her evidence was inadmissible in view of the decisions of the Privy Council in Zahiruddins case (supra ). In his opinion the view expressed by the Privy Council was not to be confined only to the physical use or tangible use of her police state. ment by a witness while giving evidence in Court. The learned Judge went on to say :-IN other words in order that the observations of their Lordships made by them in the above mentioned case may be attracted the police statement of a witness need not necessarily be in his hands or before his eyes at the time of giving evidence in the Court. Speaking for myself I have no doubt that Their Lordships observations would apply with equal force even if a witness made a mental use of his police statement which was just previously read out to him because by reason of such mental use the witnesss evidence was bound to be moulded by or modelled on his police statement. The learned Judge then proceeded to give illustration of a case in which a witness is almost made to commit to memory his police statement before stepping into the witness box to give evidence; and reasoned on this basis that the evidence of such a witness was bound to be almost a copy of his police statement Speaking with great respect this is an extreme example; and extreme examples do not become helpful in interpretation of a statute. With regard to Sabus evidence the learned Judge observed that material parts of her police statement must have almost come to be committed to memory and her evidence must have been modelled on her police statement. In the end the leaned Judge said that reading over of the police statement to the witness before her stepping into the box amounts to use of the police statement at the trial. Of course in the alternative the learned Judge also said that the value of Sabus evidence must suffer considerably. In the end the leaned Judge said that reading over of the police statement to the witness before her stepping into the box amounts to use of the police statement at the trial. Of course in the alternative the learned Judge also said that the value of Sabus evidence must suffer considerably. ( 26 ) BAVDEKAR J. refused to express any opinion on how far the Evidence of a witness would become inadmissible on the ground that the witnesss police statement was used to refresh his member. He at the same their expressed concern of the practice of reading over police statement to the witness before he enters the box and said it is doubtful how far the practice which has been deprecated by this Court so often would stop unless this Court were to hold categorically that the evidence of a witness would be inadmissible in case his statement to the police was to refresh his memory. What is of utmost significance for our purpose is the learned Judges exposition of the basis of the Privy Councils decision in Zahiruddins case. The learned Judge said :- but the fact remains that in the case which was before Their Lordships of the Privy Council the witness had used the statement to refresh his memory while he was under examination in the witness box and it was obvious therefore that it could not be argued with any reason that the statement was not used at the trial. I am inclined to think that the decision of Their Lordships of the Privy Council to exclude altogether from the evidence the deposition of a witness given be him in such circu mstances was based not upon the view that the witnesss evidence amounted to a police Statement but upon the view that it was the policy of the Legislature to prevent any use of the police statement of a witness at the enquiry or trial and if the witness was allowed to use his police statement to refresh his memory when he give the evidence it would be defeating the stature to allow his evidence to come on record. (Emphasis supplied) with respect that is the correct exposition of the ratio of the Privy Council decision which was not based on any supposed identity between the police statement and the evidence given at the trial. (Emphasis supplied) with respect that is the correct exposition of the ratio of the Privy Council decision which was not based on any supposed identity between the police statement and the evidence given at the trial. If this is the correct ratio laid down with respect to actual use of the police statement while giving evidence what logically follows from it cannot be considered to be the ratio of the Privy Councils decision. The said ratio does not apply to the questions referred to this Full Bench and those questions are not concluded by the Privy Council decision. ( 27 ) WE have already seen that in State v. Maganbhai (supra) it was the opinion of Vyas J. alone which laid down that the evidence of a witness to whom police statement was read over thrice at different times before she gave evidence in the Sessions Court was inadmissible on the basis that the bar of sec. 162 (1) was contravened. Bavdekar J. in terms refrained from expressing definite opinion on this question. The Division Bench of this High Court consisting of Divan and J. B Mehta JJ in KATHI MOTI LAKHA V. THE STATE OF GUJARAT Criminal appeal No. 543 of 1962 decided on 21/22nd November 1963 laid down a similar principle after referring to the decision of the Privy Council in Zahiruddins case (supra) and Maganbhais case (supra ). The Division Bench of this court as appears from its judgment reproduced the observations of Vyas J. in Maganbhais case under the impression that that was the decision of the Division Bench. Speaking with great respect I am of the opinion that the interpretation of sec. 162 made by Vyas J. and the Division Bench of this Court is not correct in view of the conclusion reached by me as to the interpretation and scope of the prohibition contained in sec. 162 (1) in the context of the questions referred to the Full Bench. It is already shown earlier that the cases covered by the questions referred to this Full Bench ate not governed by the dictum laid down by the Privy Council in Zahiruddins case (supra ). ( 28 ) IT must however be emphasised that the practice of reading over polite statements to witnesses before they enter the box is not a healthy practice. ( 28 ) IT must however be emphasised that the practice of reading over polite statements to witnesses before they enter the box is not a healthy practice. In cases where such practice is restored to the Magistrates and Judges should carefully consider the evidence given by the witness and decide upon the probative value of such evidence in view of the fact; and circumstances of each case. ( 29 ) ANSWERS to the questions referred to this Full Bench are as under- (1) The evidence of such witness does not become inadmissible; its probative value has to be judged in the circumstances of each case. No hard and fast rule can be laid down that in all such cases the evidence of such witness will be of no value whatsoever. (2) Reading over of the police statement to the witness before he enters the box does not amount to contravention of the prohibition contained in sec. 162 (1 ). But the fact of reading over of the statement may affect the probative value of the evidence of the witness. (3) Reading over of such a statement to the witness before he enters the box does not amount to use of such statement contrary to sec. 162 (1 ). The matter will now go back to the Division Bench. ( 30 ) BEFORE parting I must on behalf of myself and my colleagues put on record our gratitude to the learned members of the Bar for the assistance they willingly gave. Reference answered. .