JUDGMENT : 1. By this application under Article 227 of the Constitution of India, the applicant – original accused has prayed for the following reliefs: “7(A) Your Lordships be pleased to issue appropriate writ, order or directions, quashing and setting aside the impugned order dated 9.11.2017 passed by ld. 2nd Additional Sessions Judge (Special Judge), Rajula on application Exh. 94 in Special ACB Case No.25 of 2011 and further be pleased to allow the application Exh. 94, as prayed for and also direct the investigating officer to produce the case diary in respect of FIR being C.R. No.1/2010 registered with Amreli ACB Police Station before this Hon'ble Court, in the interest of justice. (B) Your Lordships be pleased to stay the further proceedings of Special ACB Case No.25 of 2011 pending in the Court of ld. 2nd Additional Sessions Judge (Special Judge), Rajula, pending the admission, hearing and final disposal of this petition, in the interest of justice; (C) Your Lordships be pleased to dispense with the filing of certified copy of FIR as well as charge sheet, in the interest of justice. (D) Your Lordships be pleased to grant such other and further reliefs as are deemed fit and proper by this Hon'ble Court, in the interest of justice;” 2. The facts of this case may be summarised as under: 2.1 The applicant accused is on trial in the Court of the 2nd Additional Sessions Judge (Special Judge, A.C.B.), Rajula, for the offence punishable under Sections 7, 13(1)(b) read with 13(2) of the Prevention of Corruption Act, 1988 (for short, “the Act, 1988”). The proceedings are numbered as the Special A.C.B. Case No.25 of 2011. The proceedings arose from an F.I.R. being C.R. No.I1 of 2010 registered with the Amreli A.C.B. Police Station for the offences enumerated above. 2.2 In the course of the trial, the prosecution examined the following witnesses: “i. P.W. No.1Exh. 14 – Ghanshyambhai Valjibhai Statasiya (Complainant) ii. P.W. No.2 – Exh. 35 – Bharatbhai Prabhudas Dave (Panch No.1) iii. P.W. No.3 – Exh. 63 – Khumansinh Devebha Parmar (Raiding Officer) iv. P.W. No.4 – Exh. 70 – Atul Kishorbhai Vyas (Sanctioning Officer) v. P.W. No.5 – Exh. 14 – Ghanshyambhai Valjibhai Statasiya (Complainant) ii. P.W. No.2 – Exh. 35 – Bharatbhai Prabhudas Dave (Panch No.1) iii. P.W. No.3 – Exh. 63 – Khumansinh Devebha Parmar (Raiding Officer) iv. P.W. No.4 – Exh. 70 – Atul Kishorbhai Vyas (Sanctioning Officer) v. P.W. No.5 – Exh. 76 – Meghrajsingh Dadubhai Jadeja (Investigating Officer)” 2.3 In the course of the cross-examination of the Investigating Officer namely Shri Jadeja (Exhibit: 77), certain questions were put to him by the defence counsel as regards the timings recorded in the panchnama of raid and the timings mentioned in the police statement of the panch witness No.1 namely Bharatbhai Prabhudas Dave (Exhibit: 35). The case of the applicant is that at the time of the recording of the police statement of the panch witness No.1 and recording of the panchnama of raid, the timings were not noted and were inserted at a later stage. The following questions were put to the PW – 5 namely Shri Jadeja during his cross-examination: “i. Is it true that the timings recorded in the police statement of the panch no.1 Bharatbhai Prabhudas Dave, have been recorded as per the trap panchnama? Ans. It is not true. ii. Is it true that in the police statement of panch no.1 Bharatbhai Prabhudas Dave, writings of the first paragraph and second paragraph are of different font size? Ans. It is not true. iii. Is it true that in the same manner, in the second and third paragraphs of the said police statement, the timings are written from different pen, in bold letters and in narrow space? Ans.: It is not true.” 2.4 In the course of the cross-examination of the Investigating Officer, the defence counsel requested the Court that the police statement of the panch witness No.1 be brought on record and looked into. In this regard, an application Exhibit: 94 was submitted. Such application was submitted to establish or highlight that the police statements of the panch witness No.1 and the panchnama of the raid carried out were fabricated and the timings stated therein were inserted at a later stage. To put it in other words, the attempt on the part of the defence counsel was to highlight that the investigation was carried out in a most perfunctory manner and was tainted with mala fide. To put it in other words, the attempt on the part of the defence counsel was to highlight that the investigation was carried out in a most perfunctory manner and was tainted with mala fide. To establish this, the suggestions, as noted above, were put to the Investigating Officer, which was outright denied by the witnesses. According to the applicant accused, as the suggestions put to the Investigating Officer were outright denied, the only way to show that, in fact, the statement of the panch witness was not recorded honestly was to ask the Judge to look into the original police statement of the panch witness. 2.5 The Trial Court, without assigning any reasons, rejected the application Exhibit: 94 by a one line order. 3. Being dissatisfied with such order passed by the Trial Court, the applicant is here before this Court with this application invoking the supervisory jurisdiction under Article 227 of the Constitution of India. 4. Mr. S.B. Tolia, the learned counsel appearing for the applicant accused vehemently submitted that the Court below committed a serious error in rejecting the application Exhibit: 94. According to Mr. Tolia, it is necessary to bring on record the police statement of the panch witness No.1 namely Bharatbhai Prabhudas Dave recorded by the Investigating Officer under Section 161 of the Cr.P.C. for the purpose of establishing that the timings in the police statement as well as in the panchnama of raid were inserted at a later stage. According to Mr. Tolia, it is also necessary to bring the case diary of the Investigating Officer on record. Mr. Tolia submitted that the law permits the Court to look into the case diary and in the same manner, if need be, the Court can also look into the police statement recorded under Section 161 of the Cr.P.C. 5. In such circumstances referred to above, Mr. Tolia, the learned counsel prays that there being merit in this application, the impugned order be quashed and the application Exhibit: 94 be allowed. 6. On the other hand, this application has been vehemently opposed by Mr. Mitesh Amin, the learned Public Prosecutor appearing for the State. Mr. Amin, the learned Public Prosecutor submitted that it is not permissible for the Sessions Judge to utilise the statement recorded under Section 161 of the Cr.P.C. as substantive evidence. This is against the fundamental principles of procedural law. Mitesh Amin, the learned Public Prosecutor appearing for the State. Mr. Amin, the learned Public Prosecutor submitted that it is not permissible for the Sessions Judge to utilise the statement recorded under Section 161 of the Cr.P.C. as substantive evidence. This is against the fundamental principles of procedural law. To put it in other words, according to Mr. Amin, any statement to the police made by any witness is not admissible in evidence and such a statement could be used only for the purpose of contradicting the witness in view of the provisions of Section 162 of the Cr.P.C. read with Section 145 of the Evidence Act. According to Mr. Amin, there is no question of asking the Sessions Judge to look into the police statement of the panch witness. According to Mr. Amin, if there are any discrepancies in the police statement of the panch witness, then the witness could have been confronted by contradicting him under the provisions of Section 145 of the Evidence Act. Mr. Amin submitted that even otherwise, it is not permissible for the Court to come to any conclusion on the basis of Section 161 statements, which are not evidence. 7. Mr. Amin, the learned Public Prosecutor submitted that the Court may even look into the case diary of the case itself, but cannot rely upon it unless its extracts are proved after confronting the same to the witness concerned under Section 162 of the Cr.P.C. 8. In such circumstances referred to above, Mr. Amin, the learned Public Prosecutor submitted that there being no merit in this application, the same be rejected. 9. Having heard the learned counsel appearing for the parties and having considered the materials on record, the only question that falls for my consideration is whether the Court below committed any error in passing the impugned order. 10. Section 162 of the Code of Criminal Procedure (for short “the Code”) interdicts the use of any statement recorded under Section 161 of the Code except for the limited purpose of contradicting the witness examined in the trial to whom such statement is attributed. 10. Section 162 of the Code of Criminal Procedure (for short “the Code”) interdicts the use of any statement recorded under Section 161 of the Code except for the limited purpose of contradicting the witness examined in the trial to whom such statement is attributed. Of course, the Supreme Court has said in Raghunandan vs. State of U.P. [ AIR 1974 SC 463 : (1974 Cr.L.J. 453)] that the power of the Court to put questions to the witness as envisaged in Section 165 of the Evidence Act would be untrammelled by the interdict contained in Section 162 of the Code. The following observations in the aforesaid decision, in recognition of the aforesaid power of the Court, would be useful in this context: “14. It is true that the ban, imposed by Section 162 Criminal Procedure Code, against the use of a statement of a witness recorded by the Police during investigation, appears sweeping and wide. But, at the same time, we find that the powers of the Court, under Section 165 of the Evidence Act, to put any question to a witness, are also couched in very wide terms authorising the Judge "in order to discover or to obtain proper proof of relevant facts" to "ask any question he pleases, in any form, at any time, of any witness, or of the parties, about any fact relevant or irrelevant". The first proviso to Section 165 Evidence Act, enacting that, despite the powers of the Court to put any question to a witness, the judgment must be based upon facts declared by the Act to be relevant, only serves to emphasize the width of the power of the Court to question a witness. The second proviso in this Section preserves the privileges of witnesses to refuse to answer certain questions and prohibits only questions which would be considered improper under Sections 148 and 149 of the Evidence Act. Statements of witnesses made to the police during the investigation do not fall under any prohibited category mentioned in Section 165 Evidence Act. If Section 162 Criminal Procedure Code was meant to be so wide in its sweep as the Trial Court thought it to be, it would make a further inroad upon the powers of the Judge to put questions under Section 165 Evidence Act. If Section 162 Criminal Procedure Code was meant to be so wide in its sweep as the Trial Court thought it to be, it would make a further inroad upon the powers of the Judge to put questions under Section 165 Evidence Act. If that was the correct position, at least Section 162 Criminal Procedure Code would have said so explicitly. Section 165 of the Evidence Act was already there when Section 162 Criminal Procedure Code was enacted. 15. It is certainly quite arguable that Section 162 Criminal Procedure Code does amount to a prohibition against the use even by the Court of statements mentioned there. Nevertheless, the purpose of the prohibition of Section 162 Criminal Procedure Code being to prevent unfair use by the prosecution of statements made by witnesses to the Police during the course of investigation, while the proviso is intended for the benefit of the defence, it could also be urged that, in order to secure the ends of justice, which all procedural law is meant to subserve, the prohibition, by taking into account its purpose and the mischief it was designed to prevent as well as its context, must be confined in its scope to the use by parties only to a proceeding of statements mentioned there. 16. We are inclined to accept, the argument of the appellant that the language of Section 162 Criminal Procedure Code, though wide, is not explicit or specific enough to extend the prohibition to the use of the wide and special powers of the Court to question a witness, expressly and explicitly given by Section 165 of the Indian Evidence Act in order to secure the ends of justice. We think that a narrow and restrictive construction put upon the prohibition in Section 162 Criminal Procedure Code, so as to confine the ambit of it to the use of statements by witnesses by parties only to a proceeding before the Court, would reconcile or harmonize the two provisions considered by us and also serve the ends of justice. Therefore, we hold that Section 162 Criminal Procedure Code does not impair the special powers of the Court under Sec. 165 Indian Evidence Act. Consequently, we think that the Trial Court could and should have itself made use of the statement made by Jailal during the course of the investigation. Therefore, we hold that Section 162 Criminal Procedure Code does not impair the special powers of the Court under Sec. 165 Indian Evidence Act. Consequently, we think that the Trial Court could and should have itself made use of the statement made by Jailal during the course of the investigation. If that had been done, it is possible that it may have affected appraisal of evidence of other prosecution witnesses.” 11. It must now be remembered that the said procedure can be followed only when the witness is in the box. Barring the above two modes, a statement recorded under Section 161 of the Code can only remain fastened up at all stages of the trial in respect of that offence. In other words, if the Court has not put any question to the witness with reference to his statement recorded under Section 161 of the Code, it is impermissible for the Court to use that statement later even for drawing any adverse impression regarding the evidence of that witness. What is interdicted by the Parliament in direct terms cannot be obviated in any indirect manner. [See: Dandu Lakshmi Reddy vs. State of A.P., 1999 Cr.L.J. 4287] 12. In the aforesaid context, I may refer to and rely upon a decision of the Supreme Court in the case of A.K. Mishra and another vs. State of Uttarakhand and another [Criminal Appeal No.1247 of 2012 decided on 28th July 2015]. In the case before the Supreme Court, the appeal arose out of the judgment passed by the High Court of Uttarakhand, whereby the High Court affirmed the conviction of the appellants therein under Sections 304B and 498A of the I.P.C. and under Sections 3 and 4 of the Dowry Prohibition Act. Before the Supreme Court, the learned counsel for the appellants submitted that the F.I.R. contains only the allegations of torture and cruel behaviour on the part of the appellants towards the deceased and in the statement of the first informant recorded by the police under Section 161 of the Cr.P.C., nothing had been stated about the dowry demand. It was contended that there were no allegations of cruelty in connection with dowry demand or any such conduct of the accused which could have driven the deceased to commit suicide either in the F.I.R. or in the statement of the first informant recorded by the Investigating Officer. It was contended that there were no allegations of cruelty in connection with dowry demand or any such conduct of the accused which could have driven the deceased to commit suicide either in the F.I.R. or in the statement of the first informant recorded by the Investigating Officer. The counsel urged and tried to persuade the Court to look into the statement of the first informant recorded under Section 161 of the Cr.P.C. The Supreme Court, while declining to do so, observed as under:- “14. Section 161 Cr.P.C. titled "Examination of witnesses by police" provides for oral examination of a person by any investigating officer when such person is supposed to be acquainted with the facts and circumstances of the case. The purpose for and the manner in which the police statement recorded under Section 161 Cr.P.C. can be used at any trial are indicated in Section 162 Cr.P.C. Section 162 Cr.P.C. reads as under: “162. Statements to police not to 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 reexamination of such witness, 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 section 32 of the Indian Evidence Act, 1872 (1 of 1872), or to affect the provisions of section 27 of that Act. Explanation.- An omission to state a fact or circumstance in the statement referred to in subsection (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. 15. Section 162 Cr.P.C. bars use of statement of witnesses recorded by the police except for the limited purpose of contradiction of such witnesses as indicated there. The statement made by a witness before the police under Section 161(1) Cr.P.C. can be used only for the purpose of contradicting such witness on what he has stated at the trial as laid down in the proviso to Section 162 (1) Cr.P.C. The statements under Section 161 Cr.P.C. recorded during the investigation are not substantive pieces of evidence but can be used primarily for the limited purpose: (i) of contradicting such witness by an accused under Section 145 of Evidence Act; (ii) the contradiction of such witness also by the prosecution but with the leave of the Court and (iii) the reexamination of the witness if necessary. 16. Court cannot suo moto make use of statements to police not proved and ask question with reference to them which are inconsistent with the testimony of the witness in the court. The words in Section 162 Cr.P.C. "if duly proved" clearly show that the record of the statement of witnesses cannot be admitted in evidence straightway nor can be looked into but they must be duly proved for the purpose of contradiction by eliciting admission from the witness during cross-examination and also during the cross-examination of the investigating officer. Statement before the investigating officer can be used for contradiction but only after strict compliance with Section 145 of Evidence Act that is by drawing attention to the parts intended for contradiction. 17. Section 145 of the Evidence Act reads as under: “145. Statement before the investigating officer can be used for contradiction but only after strict compliance with Section 145 of Evidence Act that is by drawing attention to the parts intended for contradiction. 17. Section 145 of the Evidence Act reads as under: “145. Cross-examination as to previous statements in writing.- A witness may be cross-examined as to previous statements made by him in writing or reduced into writing, and relevant to matters in question, without such writing being shown to him, or being proved; but, if it is intended to contradict him by the writing, his attention must, before the writing can be proved, be called to those parts of it which are to be used for the purpose of contradicting him.” 18. Under Section 145 of the Evidence Act when it is intended to contradict the witness by his previous statement reduced into writing, the attention of such witness must be called to those parts of it which are to be used for the purpose of contradicting him, before the writing can be used. While recording the deposition of a witness, it becomes the duty of the trial court to ensure that the part of the police statement with which it is intended to contradict the witness is brought to the notice of the witness in his cross-examination. The attention of witness is drawn to that part and this must reflect in his cross-examination by reproducing it. If the witness admits the part intended to contradict him, it stands proved and there is no need to further proof of contradiction and it will be read while appreciating the evidence. If he denies having made that part of the statement, his attention must be drawn to that statement and must be mentioned in the deposition. By this process the contradiction is merely brought on record, but it is yet to be proved. Thereafter when investigating officer is examined in the court, his attention should be drawn to the passage marked for the purpose of contradiction, it will then be proved in the deposition of the investigating officer who again by referring to the police statement will depose about the witness having made that statement. The process again involves referring to the police statement and culling out that part with which the maker of the statement was intended to be contradicted. The process again involves referring to the police statement and culling out that part with which the maker of the statement was intended to be contradicted. If the witness was not confronted with that part of the statement with which the defence wanted to contradict him, then the court cannot suo moto make use of statements to police not proved in compliance with Section 145 of Evidence Act that is, by drawing attention to the parts intended for contradiction. 19. In the case at hand, PW1 was not confronted with his statement recorded by the police under Section 161 Cr.P.C. to prove the contradiction nor his statement marked for the purpose of contradiction was read out to the investigating officer. When neither PW1 nor the investigating officer were confronted with the statement and questioned about it, PW1's statement recorded under Section 161 Cr.P.C. cannot be looked into for any purpose much less to discredit the testimony of PW1 and the prosecution version.” 13. I am of the view that the question whether the statement of the panch witness was honestly and faithfully recorded by the police is entirely irrelevant. The proviso to Section 162 (1) of the Cr.P.C. imposes a complete ban on the use of the statement unless the statement comes within the purview of Subsection (2). 14. It is altogether different if the Trial Court, on its own under Section 165 of the Evidence Act, deems fit to put any questions to the Investigating Officer in this regard, but without using the police statement as substantive evidence. In view of the suggestion put by the defence counsel to the Investigating Officer and with a view to clear the doubt, if any, the Court if deems fit, on its own, may have a look into the statement, but without referring or relying upon the same as substantive evidence while appreciating the overall evidence on record, as the accused cannot, as a matter of right, ask the Trial Court to bring the police statement on record and refer to and rely upon it to substantiate the suggestions put in the cross-examination of any witness including the Investigating Officer. The accused cannot even ask the Court to make use of the statement to police suo motu, as held by the Supreme Court in V.K. Mishra (supra). 15. Mr. The accused cannot even ask the Court to make use of the statement to police suo motu, as held by the Supreme Court in V.K. Mishra (supra). 15. Mr. Tolia, the learned counsel appearing for the applicant, in the course of his submissions, gave an illustration of the case diary. Mr. Tolia, the learned counsel submitted that it is always open for the Court to look into the case diary, if some doubts arose in the mind of the Presiding Officer, and in the same manner, as a reasonable doubt has been created, it is always open for the Court concerned to look into the police statement of the witness recorded by the police in the course of the investigation. The Court can look into the case diary of the case itself, but cannot rely upon it unless its extracts are provided after confronting the same to the witness concerned under Section 162 of the Cr.P.C. 16. In a given case, the conduct of the Trial Court in relying upon on the case diary may not be justified, even if the counsel for the accused had no objection or had given his consent for perusing the case diary. That could not invest the Trial Court with its jurisdiction to take into consideration the contents of the case diary, as the same is not permissible in law. 17. The illustration given by the learned counsel appearing for the applicant of use of the case diary by the Trial Court, in my view, is completely misplaced or misconceived. 18. Let me refer to one of the oldest Full Bench English judgment delivered on 13th July 1897 in Queen Empress vs. Mannu reported in 17 A.W.N. 1897 174. In the said judgment, the point for consideration before the Full Bench was as to the use, which may or may not, legally be made of diaries made by police officers under Section 172 of the Code of criminal procedure and as to what those diaries may contain. The Full Bench observed thus: "A Criminal Court is entitled to "send for the Police diaries of a case under inquiry or trial before it, and may use such diaries, not as evidence in the case, but to aid it in such inquiry or trial". The Full Bench observed thus: "A Criminal Court is entitled to "send for the Police diaries of a case under inquiry or trial before it, and may use such diaries, not as evidence in the case, but to aid it in such inquiry or trial". Such Criminal Court may permit the Police officer who made the special diary to look at it for the purpose of refreshing his memory or may use the special diary for the purpose of contradicting such police officer. Where the Police Officer who made the special diary is allowed to refresh his memory and does look at an entry in the diary for the purpose of refreshing his memory, the provisions of Sec.161 of the Indian Evidence Act, 1872, apply, and the accused or his agent is entitled to see such entry in the special diary and to cross-examine such Police officer thereupon. There is no provision in Sec.172 of the Code of Criminal Procedure enabling any person other than the Police Officer who made the special diary to refresh his memory by looking at the special diary, and the necessary implication is that a special diary cannot be used to enable any witness other than the Police officer who made the special diary to refresh his memory by looking at it. This is in truth a general principle of law. The Criminal Court, but not an accused person or his agent unless the police officer has been allowed to look at the diary in order to refresh his memory, can use the special diary for the purpose of contradicting the Police officer who made it, but before doing so the Court must comply with the specific enactment of Sec.145 of the Indian Evidence Act, 1872, and call the attention of the Police Officer to such parts of the special diary as are to be used for the purpose of contradicting him, otherwise such a use of the special diary would be illegal.” 19. Section 172 of the Cr.P.C. reads as follows: “172. Diary of proceeding in investigation. Section 172 of the Cr.P.C. reads as follows: “172. Diary of proceeding in investigation. (1) Every police officer making an investigation under this Chapter shall day by day enter his proceeding 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. (1A) The statements of witnesses recorded during the course of investigation under section 161 shall be inserted in the case diary. (1B) The diary referred to in subsection (1) shall be a volume and duly paginated. (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.” 20. The plain reading of the section would show that every police officer making an investigation shall enter his proceedings in a diary, which is now called as the case diary. The section contemplates that any Criminal Court may send for the said "case diary" and may use such diary not as an evidence in the case, but to aid it in such trial. The section also prohibits the accused or his agent to call for such diaries and see them. However, if the case diaries are used by the police officers, who made them to refresh his memory, the provisions of Section 161 or Section 145 of the evidence Act shall apply. 21. Section 145 of the Evidence Act reads as follows: “145. The section also prohibits the accused or his agent to call for such diaries and see them. However, if the case diaries are used by the police officers, who made them to refresh his memory, the provisions of Section 161 or Section 145 of the evidence Act shall apply. 21. Section 145 of the Evidence Act reads as follows: “145. Cross-examination as to previous statements in writing: (1) A witness may be cross-examined as to previous statements made by him in writing or reduced into writing, and relevant to matters in question, with such writing being shown to him, or being proved; but, if it is intended to contradict him by the writing, his attention must, before the writing can be proved, be called to those parts of it which are to be used for the purpose of contradicting him.” 22. Section 159 of the Evidence Act reads as follows: “159. Refreshing memory. A witness may, while under examination, refresh his memory by referring to any writing made by himself at the time of the transaction concerning which he is questioned, or so soon afterwards that the court considers it likely that the transaction was at that time fresh in his memory. The witness may also refer to any such writing made by any other person, and read by the witness within the time aforesaid, if when he read it he knew it to be correct. When witness may use copy of document to refresh memory. Whenever a witness may refresh his memory by reference to any document, he may, with the permission of the court, refer to a copy of such document: Provided the court be satisfied that there is sufficient reason for the non-production of the original. An expert may refresh his memory by reference to professional treatises.” 23. Section 161 of the Evidence Act reads as follows: “161. Right of adverse party as to writing used to refresh memory. Any writing referred to under the provisions of the two last preceding sections must be produced and shown to the adverse party if he requires it; such party may, if he pleases, cross-examine the witness thereupon.” 24. From the perusal of Section 172 of the Code, the following five points emerge: i. A police officer making an investigation shall maintain a case diary. ii. From the perusal of Section 172 of the Code, the following five points emerge: i. A police officer making an investigation shall maintain a case diary. ii. A Criminal Court is entitled to send for the case diary of the case under trial before it and may use such diaries, not as evidence in that case but to aid the Court in such trial. iii. Such Criminal Court may permit the police officer who made the case diary to look at it for the purpose of refreshing his memory or may use the case diary for the purpose of contradicting such police officer. iv. When a police officer is allowed to refresh his memory and does look at an entry in the diary for the purpose of refreshing his memory, the accused is entitled to cross examine such police officer under Section 161 of the Indian Evidence Act. v. The necessary implication is that no other person other than the police officer, who made the case diary, is allowed to look at the diary. 25. The Full Bench of the English judgment reported in 17 A.W.N. 1897 174 (Queen Empress vs. Mannu). 17 A.W.N. 1897 174 (Queen Empress vs. Mannu) has dealt with in detail of the importance of the case diary and its purpose and has observed thus: "Before concluding this judgment I must again point out that it is the absolute duty of Judges and Magistrates to entirely disregard all statements and entries in special diaries as being in any sense legal evidence for any purpose, except for the one solitary purpose of contradicting the police officer who made the special diary when they do afford such a contradiction; and even in that case they are not evidence of anything except that such Police officer made the particular entry which is at variance with his subsequently given evidence; they are not evidence that what is stated in the entry was true or correctly represents what was said or done." 26. The diary mentioned in Section 172(1) and the statements recorded under Section 161(3) of the Code are obviously different. The statements recorded under Section 161(3) are covered by the sweep of inhibition contained in Section 162 of the Code. The prohibition imposed in Section 162 cannot be circumvented by resort to Section 172(2) of the Code. The diary mentioned in Section 172(1) and the statements recorded under Section 161(3) of the Code are obviously different. The statements recorded under Section 161(3) are covered by the sweep of inhibition contained in Section 162 of the Code. The prohibition imposed in Section 162 cannot be circumvented by resort to Section 172(2) of the Code. The two are different records, though the statements recorded under Section 161(3) and the diary envisaged in Section 172(1) may together be incorporated in the same file which police call "Case Diary File", for the sake of convenience. That apart, Section 172(2) itself embodies an inhibition that the diary envisaged in that Section is not to be used as evidence in the case. The only use of the diary is "to aid" the Court in the trial, to ascertain the time at which the investigation was begun and closed on each day, the places visited by the officer, and the circumstances ascertained through the investigation. It is not a substitute for evidence in the case for the purpose of making a comparison with the testimonies of witnesses or judicial dying declarations or judicial confessions. 27. In Khatri vs. State of Bihar [ AIR 1981 SC 1068 : (1981) 2 SCC 493 ], it was held thus: “The Criminal Court holding an inquiry or trial of a case is therefore empowered by subsection (2) of Section 172 to send for the police diary of the case and the Criminal Court can use such diary, not as evidence in the case, but to aid it in such inquiry or trial. But, by reason of subsection (3) of Section 172, merely because the case diary is referred to by the Criminal Court, neither the accused nor his agents are entitled to call for such diary nor are they entitled to see it. But, by reason of subsection (3) of Section 172, merely because the case diary is referred to by the Criminal Court, neither the accused nor his agents are entitled to call for such diary nor are they entitled to see it. If however the case diary is used by the police officer who has made it to refresh his memory or if the Criminal Court uses it for the purpose of contradicting such police officer in the inquiry or trial, the provisions of Section 161 or Section 145, as the case may be, of the Indian Evidence Act would apply and the accused would be entitled to see the particular entry in the case diary which has been referred to for either of these purposes and so much of the diary as in the opinion of the Court is necessary to a full understanding of the particular entry so used. It will thus be seen that the bar against production and use of case diary enacted in Section 172 is intended to operate only in an inquiry or trial for an offence and even this bar is a limited bar, because in an inquiry or trial, the bar does not operate if the case diary is used by the police officer for refreshing his memory or the Criminal Court uses it for the purpose of contradicting such police officer.” 28. In Mukand Lal vs. Union of India [ AIR 1989 SC 144 ], it was observed that the Court is empowered to call for the relevant case diary if there is any inconsistency or contradiction arising in the context of the case diary and the Court can use the entries for the purpose of contradicting the Police Officer as provided in subsection (3) of Section 172, Cr.P.Code. Likewise in State of Bihar vs. P.P. Sharma (1992) 1 (Supp) SCC 222, it was observed thus: “The only duty cast on the investigation is to maintain a diary of his investigation, which is known as "Case Diary" under S. 172 of the Code. The entries in the case diary are not evidence nor can they be used by the accused or the Court unless the case comes under S. 172(3) of the Code. The entries in the case diary are not evidence nor can they be used by the accused or the Court unless the case comes under S. 172(3) of the Code. The court is entitled for perusal to enable it to find out if the investigation has been conducted on the right lines so that appropriate directions, if need be given and may also provide materials showing the necessity to summon witnesses not mentioned in the list supplied by the prosecution or to bring on record other relevant material which in the opinion of the Court will help it to arrive at a proper decision in terms of S. 172(3) of the Code. The primary duty of the police, thus is to collect and sift the evidence of the commission of the offence to find whether the accused committed the offence or has reason to believe to have committed the offence and the evidence available is sufficient to prove the offence and to submit his report to the competent Magistrate to take cognizance of the offence.” 29. In respect of the rights of the accused regarding the use of diaries, the Supreme Court, in Malkiat Singh vs. State of Punjab (1991) 4 SCC 341 , reiterating the view taken in Mannu's case (1897) ILR 19 All 390, and in Khatri's case AIR 1981 SC 1068 (supra) regarding the scope of Section 172(3), also observed thus: “The evidence on record clearly shows that the defence has freely used the entries in the case diary as evidence and marked some portions of the diary for contradictions or omissions in the prosecution case. *** *** *** 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 subsection (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 subsection (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. Neither the accused, nor his agent, by operation of subsection (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 for the purpose of contradicting 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 reexamination 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.” 30. In a very recent pronouncement of the Supreme Court in the case of Bala Ram vs. State of Uttarakhand and others [Criminal Appeal No.694 of 2017 decided on 19th April, 2017]. The law, as regards use of the case diary, has been very succinctly explained. I may quote the observations as under: “10. The aforementioned provisions are to be read conjointly and homogenously. It is evident from subsection (2) of Section 172 Cr.P.C., that the Trial Court has unfettered power to call for and examine the entries in the police diaries maintained by the Investigating Officer. This is a very important safeguard. The legislature has reposed complete trust in the Court which is conducting the inquiry or the trial. If there is any inconsistency or contradiction arising in the evidence, the Court can use the entries made in the diaries for the purposes of contradicting the police officer as provided in subsection (3) of Section 172 of Cr.P.C. It cannot be denied that Court trying the case is the best guardian of interest of justice. Under subsection (2) the criminal court may send for diaries and may use them not as evidence, but to aid it in an inquiry or trial. Under subsection (2) the criminal court may send for diaries and may use them not as evidence, but to aid it in an inquiry or trial. The information which the Court may get from the entries in such diaries usually will be utilized as foundation for questions to be put to the police witness and the court may, if necessary in its discretion use the entries to contradict the police officer, who made them. But the entries in the police diary are neither substantive nor corroborative evidence, and that they cannot be used against any other witness than against the police officer that too for the limited extent indicated above. 11. Coming to the use of police diary by the accused, subsection (3) of Section 172 clearly lays down that neither the accused nor his agents shall be entitled to call for such diaries nor he or they may be entitled to see them merely because they are referred to by the Court. But, in case the police officer uses the entries in the diaries to refresh his memory or if the Court uses them for the purpose of contradicting such police officer, then the provisions of Sections 145 and 161, as the case may be, of the Evidence Act would apply. Section 145 of the Evidence Act provides for cross examination of a witness as to the previous statements made by him in writing or reduced into writing and if it was intended to contradict him in writing, his attention must be called to those portions which are to be used for the purpose of contradiction. Section 161 deals with the adverse party’s right as to the writing used to refresh memory. It can, therefore, be seen that, the right of the accused to cross-examine the police officer with reference to the entries in the police diary is very much limited in extent and even that limited scope arises only when the Court uses the entries to contradict the police officer or when the police officer uses it for refreshing his memory. 12. In other words, in case if the Court does not use such entries for the purpose of contradicting the police officer or if the police officer does not use the same for refreshing his memory, then the question of accused getting any right to use entries even to that limited extent does not arise. 12. In other words, in case if the Court does not use such entries for the purpose of contradicting the police officer or if the police officer does not use the same for refreshing his memory, then the question of accused getting any right to use entries even to that limited extent does not arise. The accused persons cannot force the police officer to refresh his memory during his examination in the Court by referring to the entries in the police diary. 13. Section 145 of the Indian Evidence Act consists of two limbs. It is provided in the first limb of Section 145 that a witness may be cross-examined as to the previous statements made by him without such writing being shown to him. But the Second limb provides that, if it is intended to contradict him by the writing, his attention must before writing can be proved, be called to those parts of it which are to be used for the purpose of contradicting him. Sections 155 (3) and 145 of Indian Evidence Act deal with the different aspects of the same matter and should, therefore, be read together. 14. Be that as it may, as mentioned supra, right of the accused to cross examine the police officer with reference to the entries in the police diary is very much limited in extent and even that limited scope arises only when the Court uses such entries to contradict the police officer or when the police officer uses it for refreshing his memory and that again is subject to provisions of Sections 145 and 161 of the Indian Evidence Act. Thus, a witness may be cross-examined as to his previous statements made by him as contemplated under Section 145 of the Evidence Act if such previous statements are brought on record, in accordance with law, before the Court and if the contingencies as contemplated under Section 172(3) of Cr.P.C. are fulfilled. Section 145 of the Indian Evidence Act does not either extend or control the provisions of Section 172 of Cr.P.C. We may hasten to add here itself that there is no scope in Section 172 of the Cr.P.C. to enable the Court, the prosecution or the accused to use the police diary for the purpose of contradicting any witness other than the police officer, who made it.” 31. Although, for the purpose of deciding the matter on hand, it was not necessary to consider Section 172 of the Cr.P.C. as well as Section 165 of the Evidence Act in details, yet considering the importance of the issue being a procedural law, I thought fit to explain the position of law. 32. In my view, although no reasons have been assigned by the Court below while passing the impugned order, yet the ultimate decision arrived at is correct and requires no interference in exercise of my supervisory jurisdiction under Article 227 of the Constitution of India. 33. Some day, in an appropriate case, if I get a chance, I would like to examine the question whether it is at all required or necessary to record the police statement under Section 161 of the Cr.P.C. of a panch witness in the corruption cases. Whatever the panch witness has observed and stated, is reduced into writing in the panchnama. Thereafter, if any statement of such panch witness is recorded by the police under Section 161 of the Cr.P.C., the same shall be nothing, but a repetition of the very same thing stated in the panchnama. I am saying so because there is a distinction between the anticorruption cases and other cases and also between the statement recorded under Section 161(3) and those contained in the panchnamas. An investigation by the police does not always start immediately after registration of a case by it. Investigation commences only by the first step taken by the police towards ascertainment of the offence and the culprits thereof. In some cases, the first information may not be a complete document and before, starting the investigation supplemental information may be received. Such informations need not in all cases be statements made during the course of investigation attracting Sections 161 and 162. 34. In an anticorruption case when the first information is given for arranging a trap and a case is registered after recording the information, the offence does not take place, and hence, investigation cannot start because investigation involves ascertainment of the offence and the offender. Without an offence and the offender, there is no investigation at all. At that stage, there will only be a demand or agreement to accept the bribe and the information and registration of the case cannot relate to the offence for which the accused is tried. Without an offence and the offender, there is no investigation at all. At that stage, there will only be a demand or agreement to accept the bribe and the information and registration of the case cannot relate to the offence for which the accused is tried. The steps taken on the basis of such information and before actual commission of the offence cannot be steps in investigation. There may be only steps preliminary to investigation. Without an offence, there cannot be an offender and without an offence, there cannot be investigation also. [Shyamlal Sharma vs. King Emperor, AIR 1949 All 483 : (1949 (50) CrLJ 719) (FB)]. In a case coming under Section 13(1)(d) of the Prevention of Corruption Act, an offence is complete only when the illegal gratification is accepted by the accused person. 35. In order that a previous statement under Section 157 of the Evidence Act should also fall under Section 162 of the Cr.P.C, it must be a statement made to a police officer and must have been made in the course of investigation. When the primary and essential purposes of the panchnamas are taken into account, it is not possible to say that the panch witnesses intended an element of communication to the police officer. They are asked to witness certain things and what is done is only making a contemporaneous record of what they saw and heard. There is a distinction between narration made to a police officer with a view to communicate or impart knowledge and a mere record of what the witnesses saw and heard which is intended as a contemporaneous record. The mere fact that the record was made by the police officer on hearing from the witnesses will not make any difference. But, if the panchnama contains statements intended as a narration to the police officer during investigation, it will be hit by Section 162. 36. The two provisions of the Code of Criminal Procedure dealing with the making of such contemporaneous records during investigation are Sections 103 and 174, the first dealing with search and seizure and the second dealing with inquest. These records will have to be prepared in the presence of respectable witnesses. These provisions cannot be exhaustive. Panchnamas are contemplated in cases of test identification, specimen handwriting or fingerprints, Section 27 recovery etc. These records will have to be prepared in the presence of respectable witnesses. These provisions cannot be exhaustive. Panchnamas are contemplated in cases of test identification, specimen handwriting or fingerprints, Section 27 recovery etc. These records are never intended to convey any information by the witnesses to the Investigating Officer and they are intended only to make a record of things that transpired in their presence or to their hearing. The pretrap or posttrap panchnama in an anticorruption case only records what transpired in the presence of the witnesses either before or after the police officer arrives at the scene. These are not intended to impart knowledge to the police officer. Of course, when a panchnama is tendered in evidence, it is the duty of the Court to ascertain whether any part of it falls within the mischief of Section 162 of the Cr.P.C, and if it so falls the Court should refuse to admit that portion in evidence. 37. The observations made by this Court in paras 33, 34, 35 and 36 are general in nature and not at all relevant for the purpose of deciding the present matter. 38. With the above, this application is disposed of. Notice stands discharged. The adinterim order earlier granted stands vacated.