1 IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JAIPUR BENCH, JAIPUR ORDER S.B. Criminal Misc. Petition No. 1211/2008 (Haqeem Versus The State of Rajasthan) Date of Order :: 4th March, 2010 HON'BLE MR. JUSTICE MAHESH BHAGWATI Mr. Sudhir Jain, counsel for the petitioner. Mr. G.S. Fauzdar, PP for the State BY THE COURT: Heard learned counsel for the petitioner, who has impugned the order dated 30th June, 2008 rendered by Additional Sessions Judge (Fast Track) No.2, Jaipur City, Jaipur, whereby the learned Additional Sessions Judge allowed the prosecution to use the statements of a witness recorded under section 161 of Cr.P.C. by the Investigating Officer, who subsequently appeared in defence. Learned counsel for the petitioner has canvassed that the statement recorded under Section 161 of Cr.P.C. by the Investigating Officer cannot be used for the purpose of cross-examination if the person is produced in defence. This power is vested with the prosecution only when 2 the witness is produced during trial or enquiry as a prosecution witness. Learned counsel took me through the provisions of Section 162 of Cr.P.C. and endeavoured to interpret the provisions in a manner which suited him. He also cited one judgment delivered by the Hon'ble Apex court in the case of Laxman Kalu Nikalje Versus The State of Maharashtra reported in AIR 1968 Supreme Court 1390 and contended that in this case, Hon'ble Apex Court held that it was unfortunate that indian law did not admit of cross examination of defence witness in respect of his previous statement before the police. Both the provisions, as envisaged in Section 162 as also the judgment of the Hon'ble Apex Court suggest that if the witness whose statement was recorded earlier under Section 161 of Cr.P.C. by the Investigating Officer and produced by the accused in defence cannot be used for the purpose of cross-examination during cross- examination. I am afraid that learned counsel for the petitioner could not properly 3 appreciate the judgment of the Hon'ble Apex court. A bare perusal of the para no. 7 of the judgment suggests that the statement of defence witness in respect of his previous statement before the police was not taken into consideration in evidence under Section 145 of Indian Evidence Act. The judgment does not suggest that the statement given by a witness under Section 161 before the police officer cannot be used during cross-examination if that witness is produced in defence. Learned Sessions Judge has analyzed the legal position in detail relying upon the various judgments of High court as also the Hon'ble Apex Court. The impugned order is found to be absolutely just and proper and the same suffers from no legal infirmity. The impugned order is based on cogent reasoning, with which I fully concur. The arguments advanced by the learned counsel for the petitioner is found to be untenable and the petition deserves to be dismissed in limine. 4 For the reasons stated above, the criminal misc. petition filed under section 482 of Cr.P.C. being bereft of merits stands dismissed at the thresh- hold. (MAHESH BHAGWATI),J. DK/-