ORDER 1. Heard learned counsel for the petitioner, learned counsel for the State and opposite party no.2. 2. In this case the petitioner has challenged the order dated 18.6.2011 passed by the learned District and Sessions Judge, Vaishali at Hajipur in connection with Sessions Trial No.423 of 2007 by which the trial court has rejected the prayer of defence to draw the attention of the Investigating Officer on the statements of the witnesses recorded in the case diary. 3. Filtering the unnecessary facts, on the basis of Fardbeyan, the police registered the case against the accused persons under Sections 302, 341, 323, 452 and 379/34 of the Indian Penal Code on the statement of Rabindra Kumar Rai the case has been registered as Raja Pakar P.S. Case No.61 of 2003. In the First Information Report allegation has been made about causing fire arm injuries to the victim ultimately led to his death in the Hospital. Motive behind the occurrence as the victim refused to succumb the pressure of the accused persons to pay the extortion money (Rangdari). 4. The police investigated the case and during investigation recorded the statement of Parwati Devi, Indrashan Devi, Misrilal Rai, Asarfi Rai and Umesh Rai. According to the petitioner their statements are not compatible with the prosecution case. The case was investigated by Sanjay Kumar Singh, the Investigating Officer (P.W.9). During examination-in-chief certain documents part of the case diary were proved which were marked as Exhibits 5, 6 and 7. During cross-examination the defence lawyer drew the attention of the Investigating Officer to the statements of Parwati Devi, Indrashan Devi, Mishrilal Rai, Asarfi Rai and Umesh Rai whose statement was recorded in the case diary but the trial court refused to allow this question to be asked from the Investigating Officer. 5. The court below assigned the reason for refusal to allow this question to be asked to the Investigating officer as Parwati Devi, Indrashan Devi, Mishrilal Rai, Asarfi Rai and Umesh Rai though examined during investigation having not been examined in the court from the side of the prosecution during trial. 6. Learned counsel for the petitioner has raised the grievance that recording of their statement is a fact in issue covered under Section 11 of the Evidence Act. 6. Learned counsel for the petitioner has raised the grievance that recording of their statement is a fact in issue covered under Section 11 of the Evidence Act. Sections 151 and 152 of the Evidence Act specifically provides the area of prohibition for putting the question to the prosecution witnesses and the court below except those exception specifically mentioned was not justified in prohibiting to ask this question to the Investigating Officer about the recording of statement of the witnesses mentioned therein. In support of his contention he has relied on two judgments (Fatnaya Lal Khan and others Vs. Emperor) A.I.R. 1942 Lahorh 88, and (Mohiunddin Khan and others Vs. The King Emperor) A.I.R. 1924 Patna 829 and claimed that the trial court committed an error in not allowing the question to be asked from the Investigating Officer with regard to the statement of the witnesses recorded in the case diary. 7. Learned counsel for the State vehemently opposed the argument advanced by learned counsel for the petitioner and submitted that the statement recorded by the police having no evidentiary value cannot be called as fact in issue. The statement recorded in the case diary by the police cannot be used by either side for the purposes of proving or disproving the charge against the accused persons but can be pressed in service for attracting contradiction to the statement of witnesses who later deposed before the trial court. Any witnesses who was not examined during the trial cannot be an issue for drawing the attention of contradiction with regard to the statement of the persons recorded in the case diary. 8. Now the question emerges as to whether the trial court was justified in refusing to allow defence to ask or draw the attention of the Investigating Officer with regard to the statement recorded in the case diary of some of the persons who were examined by the police but not chosen by the prosecution during trial. 9. For coming to the right conclusion it will be necessary and desirable to consider different provisions of Evidence Act as well as certain provisions of the Code of Criminal Procedure. 10. 9. For coming to the right conclusion it will be necessary and desirable to consider different provisions of Evidence Act as well as certain provisions of the Code of Criminal Procedure. 10. Section 161 of the Code of Criminal Procedure (hereinafter referred to as ‘the Code?) provides the examination of witnesses by the police which entitles the Investigating Officer to examine orally any person supposed to be acquainted with the facts and circumstances of the case and the statement may be reduced into writing but the obligation has been attached to the Investigating Officer to record the statement correctly and truly. Section 162 of the Code provides that no statements made by any person to a Police Officer in the course of an investigation if reduced in writing be signed by the person making the statement and the statement or any part of the statement recorded in the case diary be used for any purpose at enquiry or trial in respect of any offence under investigation. Section 172 of the Code provides that every Police Officer making investigation shall day to day enter the proceeding of the investigation in the diary and the criminal court may send the police diaries of a case under inquiry or trial to proper court if any and the court may use such diaries, not as evidence in the case except an aid in such inquiry or trial. It further provides that neither the accused nor his agents shall be entitled to call for such diaries, nor shall he or they be entitled to see them merely because they are referred to by the Court but rider has been provided 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 accused will have right for contradiction as per provisions of Section 161 of the Code or Section 145 of the Evidence Act. For better appreciation and consideration for the issue involved it will be appropriate to quote the following provisions of the Code: “Section 161: Examination of witnesses by police.- (1) Any police officer making an investigation under this Chapter, or any police officer not below such rank as the State Government may, by general or special order, prescribe in this behalf, acting on the requisition of such officer, may examine orally any person supposed to be acquainted with the facts and circumstances of the case. (2) Such person shall be bound to answer truly all questions relating to such case put to him by such officer, other than questions the answers to which would have a tendency to expose him to a criminal charge or to a penalty or forfeiture. (3) The police officer may reduce into writing any statement made to him in the course of an examination under this section; and if he does no, he shall make a separate and true record of the statement of each such person whose statement he records.” 162: Statements to police not be signed:- Use of statements in evidence.- (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 a police diary or otherwise, or any part of such statement or record, be used for any purpose, save 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 or 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 section 145 of the Indian Evidence Act, 1872 (1 of 1872); and when any part of such statement is so used, any part thereof may also be used in the re-examination of such witness, but for the purpose only of explaining any matter referred to in his cross-examination. (2) Nothing in his section shall be deemed to apply to any statement falling within the provisions of clause (1) of Section 32 of the Indian Evidence Act, 1872 (1 of 1872), or to affect the provisions of section 27 of that Act. 172. Diary of proceedings in investigation.- (1) Every police officer making an investigation under this Chapter shall day by day enter his proceedings in the investigation in a diary, setting forth the time at which the information reached, him, the time at which he began and closed his investigation, the place or places visited by him, and a statement of the circumstances ascertained through his investigation. (2) Any Criminal Court may send for the police diaries of a case under inquiry or trial in such Court, and may use such diaries, not as evidence in the case, but to aid it in such inquiry or trial. (3) Neither the accused nor his agents shall be entitled to call for such diaries, 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 purpose of contradicting such police officer, the provisions of section 161 or section 145, as the case may be, of the Indian Evidence Act, 1872 (1 of 1872), shall apply.” 11. As per the learned counsel for the petitioner it has been submitted that the statement made before the police is a fact in issue and the defence has every right to bring to the notice of the Investigating Officer, during deposition. As to whether the evidence recorded by the police of a witness will be fact in issue as per Section 11 of the Evidence Act. For finding proper answer to the aforesaid question it will be relevant to examined the aforesaid section which is as follows:- “11. When facts not otherwise relevant become relevant.- Facts not otherwise relevant are relevant- (1) if they are inconsistent with any fact in issue or relevant fact; (2) if by themselves or in connection with other facts they make the existence or non-existence of any fact in issue or relevant fact highly probable or improbable.” 12. When facts not otherwise relevant become relevant.- Facts not otherwise relevant are relevant- (1) if they are inconsistent with any fact in issue or relevant fact; (2) if by themselves or in connection with other facts they make the existence or non-existence of any fact in issue or relevant fact highly probable or improbable.” 12. Section 11 of the Evidence Act says that the facts not otherwise relevant are relevant if they are inconsistent with any fact in issue or relevant fact. Sub Clause (2) provides that if by themselves or in connection with other facts they make the existence or non-existence of any fact in issue or relevant fact highly probable or improbable. It deals with a factual events not the evidence recorded by the police. The evidence of witness tends to prove the particular event. The fact in issue may be proved or disproved by the properly constituted evidence. As this section deals with the situational fact shows the proof of one fact tending to prove the another fact. If a particular fact is proved though not relevant but the possibility of happening of other fact will be relevant. So the earlier fact though not relevant to the fact but existence of that fact makes another fact probable or improbable would be relevant for the proof of another event. This section does not deal with evidentiary value of statement recorded by the police nor it deals with questions to be asked to witness during cross-examination and as such this Court is of the view that Section 11 of the Evidence Act does not deal with the issue involved in the present case. 13. Section 145 of the Evidence Act will be proper to deal with the present issue as it provides that a witness may be cross-examined as to previous statements made by him in writing or reduced in writing, and relevant to matters in question, without such writing being shown to him or being proved; but, in a situation when it was 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. Section 151 of the Evidence Act states that the Court may forbid any questions or inquiries which it regards as indecent or scandalous, although such questions or inquiries may have some bearing on the questions before the Court, unless they relate to facts in issue, or to matters necessary to be known in order to determine whether or not the facts in issue existed. Section 152 of the Evidence Act also provides that the Court shall forbid any question which appears to it to be intended to insult or annoy, or which, though proper in itself, appears to the Court needlessly offensive in form. Section 155 of the Evidence Act deals with impeaching the credit of witnesses through the process mentioned therein and one of situation has been mentioned about proof of inconsistent statement made earlier. 14. Argument has been advanced that the two sections namely sections 151 and 152 can be pressed in service prohibiting any question to be put to the witnesses during cross-examination otherwise the Evidence Act does not provide for the court to prohibit the defence to put any question during cross-examination. 15. The aforesaid two sections deals with prohibition of a particular question when the questions are related to the personal to witnesses completely meant to indecent or scandalous intended to insult or annoy. But these sections cannot be pressed in service dealing with every situational fact as Section 136 of the Evidence Act provides that when either party propose to give evidence of a fact the Judge may ask the party proposing to give evidence in what manner the alleged fact, if proved, would be relevant; and the Judge shall admit the evidence if he thinks that the fact, if proved, would be relevant, and not otherwise. The second part provides that if the fact proposed to be proved is admissible only upon proof of some other fact, such last mentioned fact must be proved before evidence is given of the fact first mentioned, unless the party undertakes to give proof of such fact, and the Court is satisfied with such undertaking. The second part provides that if the fact proposed to be proved is admissible only upon proof of some other fact, such last mentioned fact must be proved before evidence is given of the fact first mentioned, unless the party undertakes to give proof of such fact, and the Court is satisfied with such undertaking. The third part of this section provides that if the relevancy of one alleged fact depends upon another alleged fact being first proved, the Judge may, in his discretion, either permit evidence of the first fact to be given before the second fact is proved, or require evidence to be given of the second fact before evidence is given of the fist fact. On analysis of Section 136 of the Evidence Act it appears that it is the Judge who control the proceeding of the Court and would allow those evidence to come on record either in examination-in-chief or cross-examination unless he satisfied the evidences which is intended to be brought on record are relevant and must be admissible in law. 16. The High Courts and the Hon?ble Supreme Court nearer to present issue has decided on different occasions. It will be relevant to consider the judgment of Fatnaya Lal Khan (supra). In that case two persons were killed in connection with a girl who was earlier married to one person and later on she her own volition had gone along with other person. There Investigating Officer was examined. During trial the Investigating Officer, Sub Inspector was asked whether he had made any note at the time in the police diary with regard to the presence of blood-stains whereupon he replied, that he could not say whether he made any such note or not when he was asked to look to the case diary but was not prepared to consult the diary. Subsequently the Sub Inspector was unable to answer a question on a similar point, but at later occasion he was prepared to look to what he had written in his diary. In that situation the Lahore Court has held that a witness is under an obligation to disclose the whole truth to the best of his ability; this obligation is, if anything, heavier when the witness is a police officer whose duty it is to act as an officer or of public justice. In that situation the Lahore Court has held that a witness is under an obligation to disclose the whole truth to the best of his ability; this obligation is, if anything, heavier when the witness is a police officer whose duty it is to act as an officer or of public justice. The Court further held that so far as the statements of witnesses are concerned, the question may be no longer one of more than academic interest in view of the amended provisions of Section 162 of the Code; but held that a diary is record of steps taken by the police in course of investigation may contain confidential matters which could not in the public interest be disclosed and for which privilege might be claimed, but no such question can arise when it is merely a question of the presence of blood-stains or injuries, which are matters of common knowledge in the case and it is only desired to secure the best possible evidence on the point. The Court has further held that accused persons are not entitled to call for these diaries unless a police officer uses them to refresh his memory, or the Court uses them for the purpose of contradicting a witness. It will be relevant to quote following from the judgment: “…..it was ever intended that information on any such point should be deliberately withheld if it should happen to be in any way necessary for the decision of the case. It is true that the accused is not entitled to call for these diaries unless a police officer uses them to refresh his memory, or the Court uses them for the purpose of contradicting a witness; but if it was anticipated that a police officer would ordinarily seek to fulfill his duty as witness by consulting any memorandum for the purpose of refreshing his memory on any material point, then the section would surely have been framed on this assumption and the fact that it might be necessary to require a witness to refresh his memory would not have been regarded as contrary to what was intended by the section as a whole. In other words it seems to us impossible to hold that it was even intended to leave it to a witness to decide whether or not he should disclose a material fact which might turn the scale in deciding whether an accused person was guilty or innocent, when he is in a position to clear up a point by reference to any notes taken by him during the course of investigation. Should a police officer refuse to assist the Court in this way, it seems to us that he would not only be failing in his duty both as a witness and as an officer of public justice, but would also be liable to exactly the same penalty as any other witness who refuses to give evidence which is within his knowledge and is not affected by any particular claim of privilege…..” 17. The Court also considered the judgment of Calcutta High Court where it has been held that since an accused was not entitled to call for the police diary though he was entitled to see them if a witness uses them for the purposes of refreshing the memory, it was apparently considered un-desirable that an attempt should be made to obtain access to their contents by the indirect means of asking a witness to refresh his memory by reference to them. In the said judgment the Court has also considered this Court?s judgment in the case of Mohiuddin Khan (supra) where it was held that the Court in such circumstance should require a witness to refresh his memory when such refreshment seems necessary. In that case the factual position was that in the First Information Report two persons were not mentioned rather ten other persons alleged to had gone to the field with two Pathans whose names were not known. The question was raised as to whether these two petitioners of that case were identified specifically while the witness had proved to have been member of an unlawful assembly. The witness gave ambiguous or evasive answer. When the police Inspector was on dock he was questioned whether the witnesses had named these two petitioners to him and he said he could not remember. The witness gave ambiguous or evasive answer. When the police Inspector was on dock he was questioned whether the witnesses had named these two petitioners to him and he said he could not remember. When asked to refresh his memory from his diary but he refused to do so and the Magistrate did not compel him to look in to the diary for the purposes of answering the question as he ought to have done. This Court had held that it was open to the Judicial Commissioner to call Sub Inspector before him in order that he may be examined on the question of identification and he was required to refresh his memory where such refreshment seem necessary. 18. Here is not the situation. In this case the Court has refused to allow cross examine the Investigating Officer with regard to the statement of witnesses recorded in the case diary but was not examined by the prosecution during the trial. So the present case is not very appropriate to deal with the issue which is raised in the present case. 19. The Madras High Court In re Syamo Maha Patro, reported 137 Ind. Cas.9. In this case the question was raised whether the statement of accused recorded by the police was admissible as a evidence on the ground that Section 162 of the Code refers only statement of witness recorded by police not statement of the accused. While dealing with the situation the court has held that the statement of accused or of witnesses by police would both lie in prohibitory area within the provision of Section 162 and held that the statement made by the accused persons to the police in the course of investigation of the case could not be used at the trial for any purpose. 20. The Hon?ble Supreme Court in the case of Tahsildar Singh and another Vs. State of Uttar Pradesh, reported in A.I.R. 1959 SC 1012 considered the scope and para-meter and amendments affected in Section 162 of the Code. By Act of 10 of 1872 similar to section 162 of the Code was section 119 where it has dealt with the statement recorded by the Police Officer during investigation and its evidentiary value and later the Act was amended and the section 162 of the Code was made equivalent to Section 119 but in its different form. By Act of 10 of 1872 similar to section 162 of the Code was section 119 where it has dealt with the statement recorded by the Police Officer during investigation and its evidentiary value and later the Act was amended and the section 162 of the Code was made equivalent to Section 119 but in its different form. Time to time this Section has been amended by the legislature. The Hon?ble Supreme Court was considering the scope and para-meter of section 162 of the Code while this Section was amended by the Act 2 of 1945 thereby sub-section (3) was added restoring the Act which was prevalent during 1923. 21. In this case the Court has considered the intention of legislature of excluding the statement of witnesses made before the police during investigation for being made use during trial for any purpose. But made an exception by inserting proviso impeaching the credit of the witnesses in the manner provided under the Evidence Act showing contradiction to earlier statement. The Court has held that the statement in writing made by a witness before a Police Officer in course of investigation can be used to contradict his statement during trial, the statement not reduced to writing by the Police Officer cannot be used for contradiction. It will be relevant to quote paragraph no.11, 16, 17 and 26 of the aforesaid judgment: “11.It is, therefore, seen that the object of the legislature throughout has been to exclude the statement of a witness made before the police during the investigation from being made use of at the trial for any purpose, and the amendments made from time to time were only intended to make clear the said object and to dispel the cloud cast on such intention. The Act of 1898 for the first time introduced an exception enabling the said statement reduced to writing to be used for impeaching the credit of the witness in the manner provided by the Evidence Act. As the phraseology of the exception lent scope to defeat the purpose of the legislature, by the Amendment Act of 1923, the section was redrafted defining the limits of the exception with precision so as to confine it only to contradict the witness in the manner provided under section 145 of the Evidence Act. As the phraseology of the exception lent scope to defeat the purpose of the legislature, by the Amendment Act of 1923, the section was redrafted defining the limits of the exception with precision so as to confine it only to contradict the witness in the manner provided under section 145 of the Evidence Act. If one could guess the intention of the legislature in framing the section in the manner it did in 1923, it would be apparent that it was to protect the accused against the user of the statements of witnesses made before the police during investigation at the trial presumably on the assumption that the said statements were not made under circumstances inspiring confidence. Both the section and the proviso intended to serve primarily the same purpose i. e., the interest of the accused. 16. The object of the main section as the history of its legislation shows and the decided cases indicate is to impose a general bar against the use of statement made before the police and the enacting clause in clear terms says that no statement made by any person to a police officer or any record thereof, or any part of such statement or record, be used for any purpose. The words are clear and unambiguous. The proviso engrafts an exception on the general prohibition and that is, the said statement in writing may be used to contradict a witness in the manner provided by S. 145 of the Evidence Act. We have already noticed from the history of the section that the enacting clause was mainly intended to protect the interests of accused……. 17. At the same time, it being the earliest record of the statement of a witness soon after the incident, any contradiction found therein would be of immense help to an accused to discredit the testimony of a witness making the statement. The Section was, therefore, conceived in an attempt to find a happy 'via media', namely, while it enacts an absolute bar against the statement made before a police-officer being used for any purpose whatsoever, it enables the accused to rely upon it for a limited purpose of contradicting a witness in the manner provided by S. 145 of the Evidence Act by drawing his attention to parts of the statement intended for contradiction. It cannot be used for corroboration of a prosecution or a defence witness or even a Court witness. Nor can it be used for contradicting a defence or a Court witness. Shortly stated, there is a general bar against its use subject to a limited exception in the interest of the accused, and the exception cannot obviously be used to cross the bar. 26. Nor can it be used for contradicting a defence or a Court witness. Shortly stated, there is a general bar against its use subject to a limited exception in the interest of the accused, and the exception cannot obviously be used to cross the bar. 26. From the foregoing discussion the following propositions emerge: (1) A statement in writing made by a witness before a police officer in the course of investigation can be used only to contradict his statement in the witness box and for no other purpose; (2) statements not reduced to writing by the police officer cannot be used for contradiction; (3) though a particular statement is not expressly recorded, a statement that can be deemed to be part of that expressly recorded can be used for contradiction, not because it is an omission strictly so-called but because it is deemed to form part of the recorded statement; (4) such a fiction is permissible by construction only in the following three cases: (i) when a recital is necessarily implied from the recital or recitals found in the statement: illustration: in the recorded statement before the police the witness states that he saw A stabbing B at a particular point of time, but in the witness box he says that he saw A and C stabbing B at the same point of time; in the statement before the police the word "only" can be implied i. e., the witness saw A only stabbing B; (ii) a negative aspect of a positive recital in a statement: illustration: in the recorded statement before the police the witness says that a dark man stabbed B, but in the witness box he says that a fair man stabbed B; the earlier statement must be deemed to contain the recital not only that the culprit was a dark complexioned man but also that he was not of fair complexion; and (iii) when the statement before the police and that before the Court cannot stand together: illustration: the witness says in the recorded statement before the police that A after stabbing B ran away by a northern lane, but in the Court he says that immediately after stabbing he ran away towards the southern lane; as he could not have run away immediately after the stabbing i. e., at the same point of time, towards the northern lane as well as towards the southern lane, if one statement is true, the other must necessarily be false.” 22. The Hon?ble Supreme Court in the case of Malkiat Singh and others Vs. State of Punjab, reported in (1991) 4 SCC 341 has considered the value of evidence recorded by the police during investigation in the case diary and scope of cross-examination by the defence in context of recorded statement therein. The Court has considered at what situation the defence will have a liberty to put the question giving a situational fact in paragraph 11 which is as follows: “11. It is manifest from its bare reading without subjecting to detailed and critical analysis that the case diary is only a record of day to day investigation of the investigating officer to ascertain the statement of circumstances ascertained through the investigation. Under sub-section (2) the court is entitled at the trial or enquiry to use the diary not as evidence in the case, but as aid to it in the inquiry or trial. Neither the accused, nor his agent, by operation of sub-section (3), shall be entitled to call for the diary, nor shall he be entitled to use it as evidence merely because the court referred to it. Only right given thereunder is that if the police officer who made the entries in the diary uses it to refresh his memory or if the court uses it for the purpose of contradiction such witness, by operation of Section 161 of the Code and Section 145 of the Evidence Act, it shall be used for the purpose of contradicting the witness, i.e. Investigation Officer or to explain it in re-examination by the prosecution, with permission of the court. It is, therefore, clear that unless the investigating officer or the court uses it either to refresh the memory or contradicting the investigating officer as previous statement under Section 161 that too after drawing his attention thereto as is enjoined under Section 145 of the Evidence Act, the entries cannot be used by the accused as evidence. Neither P.W.5 nor P.W.6, nor the court used the case diary. Therefore, the free use thereof for contradicting the prosecution evidence is obviously illegal and it is inadmissible in evidence. Thereby the defence cannot place reliance thereon. But even if we were to consider the same as admissible that part of the evidence does not impinge upon the prosecution evidence.” 23. Therefore, the free use thereof for contradicting the prosecution evidence is obviously illegal and it is inadmissible in evidence. Thereby the defence cannot place reliance thereon. But even if we were to consider the same as admissible that part of the evidence does not impinge upon the prosecution evidence.” 23. The Court has considered the similar question in the judgment of the Hon?ble Supreme Court in the case of Mahabir Singh Vs. State of Haryana, reported in (2001) 7 SCC 148 and has reiterated the same view as above in paragraph 14 of the judgment which is as follows: “A reading of the said sub-sections makes the position clear that the discretion given to the court to use such diaries is only for aiding the court to decide on a point. It is made abundantly clear in sub-section (2) itself that the court is forbidden from using the entries of such diaries as evidence. What cannot be used as evidence against the accused cannot be used in any other manner against him. If the Court uses the entries in a case diary for contradicting a police officer it should be done only in the manner provided in section 145 of the Evidence Act i.e. by giving the author of the statement an opportunity to explain the contradiction, after his attention is called to that part of the statement which is indented to be so used for contradiction. In other words, the power conferred on the Court for perusal of the diary under Section 172 of the Code is not intended for explaining a contradiction which the defence has winched to the fore through the channel permitted by law. The interdict contained in section 162 of the Code, debars the court from using the power under Section 172 of the Code for the purpose of explaining the contradiction.” 24. In the recent judgment the Hon?ble Supreme Court in the case of R. Shaji Vs. State of Kerala, reported in 2013 (2) PLJR 145 SC has held that evidence given in a court under oath has great sanctity, that is why the same is called substantive evidence. The statements under Section 161 of the Code can be used for the purposes of contradiction whereas statement recorded under section 164 of the Code can be used for both corroboration and contradictory. It will be relevant to quote paragraph nos. The statements under Section 161 of the Code can be used for the purposes of contradiction whereas statement recorded under section 164 of the Code can be used for both corroboration and contradictory. It will be relevant to quote paragraph nos. 14 and 16 of the aforesaid Judgment: “14. Evidence given in a court under oath has great sanctity, which is why the same is called substantive evidence. Statements under Section 161 Cr.P.C. can be used only for the purpose of contradiction and statements under Section 164 Cr.P.C. can be used for both corroboration and contradiction. In a case where the Magistrate has to perform the duty of recording a statement under Section 164 Cr.P.C., he is under an obligation to elicit all information which the witness wishes to disclose, as a witness who may be an illiterate, rustic villager may not be aware of the purpose for which he has been brought, and what he must disclose in his statements under Section 164 Cr.P.C.. Hence, the Magistrate should ask the witness explanatory questions and obtain all possible information in relation to the said case. 16. Section 157 of the Evidence Act makes it clear that a statement recorded under Section 164 Cr.P.C., can be relied upon for the purpose of corroborating statements made by witnesses in the Committal Court or even to contradict the same. As the defence had no opportunity to cross-examine the witnesses whose statements are recorded under Section 164 Cr. P.C., such statements cannot be treated as substantive evidence.” 25. On analysis of the aforesaid judgments the following principle emerges that the statement recorded by the police during the investigation can not be used as a evidence either at the trial or enquiry neither by the accused nor his agent or prosecution. If the Police Officer who made entries in the diary uses to refresh his memory or if the court uses it for the purpose of contradiction such witness, by operation of section 161 of the Code and Section 145 of the evidence Act, it may be used from the side of accused for the purpose of showing contradiction to the witness, including Investigating Officer with a liberty to explain it in re-examination by the prosecution, with permission of the court. So it is clear statement recorded by the police in case diary cannot be used as an evidence except for showing contradiction drawing attention to his earlier statement. 26. In the present case though the Investigating Officer during investigation recorded the statement of Parwati Devi, Indrashan Devi, Mishrilal Rai, Asarfi Rai and Umesh Rai but during trial the prosecution did not opt to examine the aforesaid witnesses. It is well settled principle of law that it is the prosecution to decide as to who are the best witness to prove the prosecution case. Neither the court nor the defence can ask the prosecution to bring the particular witness to prove the prosecution case. But is not the end of the matter. The Court in exercise of power under Section 311 of the Code either on the application of the prosecution or on the application of the defence or suo motu for the ends of justice call any person as witness. In the present case those witnesses were not examined by the prosecution in the court during trial and as such there being no any occasion of contradiction to the earlier statement of the aforesaid witnesses examined by the police during investigation. As it has been held herein- above, the statement recorded in the case diary of the aforesaid persons having no evidentiary value, can neither be used by the prosecution nor by the accused save and except by way of a contradiction which is not available in the present case in view of non-examination of the witnesses. When the evidence of the aforesaid witnesses cannot be used as evidence the accused cannot be allowed to make those statements as substantive evidence by the process of drawing attention of Investigating Officer circumventing the process of law. It is well known principle of law, a thing which cannot be done directly, cannot be allowed to be done indirectly based on the principle of quondo aliquid prohibitur, prohibitur et omne per anod devenitur and illad (what ever is prohibited by law to be done, cannot be legally be effected by an indirect and circuitous contriavance) . 27. It is well known principle of law, a thing which cannot be done directly, cannot be allowed to be done indirectly based on the principle of quondo aliquid prohibitur, prohibitur et omne per anod devenitur and illad (what ever is prohibited by law to be done, cannot be legally be effected by an indirect and circuitous contriavance) . 27. In this view of the matter, this Court is of the view that when the statement of those persons have no evidentiary value being part of case diary in view of the fact that they were not examined during the trial question of contradiction does not arise, the court below has rightly refused to allow the defence to draw the attention of the Investigating Officer to the statement of the aforesaid persons recorded in the case diary. Accordingly this petition fails and it is dismissed.