CW – 4465/07 -Abdul Rehan & Ors. Vs. Addl. District Judge & Ors. Judgment dt.7.8.08 1/3 S.B. CIVIL WRIT PETITION NO.4465/2007 Abdul Rehan & Ors. Vs. Addl. District Judge & Ors. Date of order : 07th August, 2008 PRESENT HON'BLE DR. JUSTICE VINEET KOTHARI Mr. Vikas Balia for the petitioner. Mr. R.R. Nagori for the respondents. --------- 1. Heard learned counsels. 2. This writ petition is directed against the order dated 10.7.2007 whereby the learned trial court refused to allow the petitioner to confront the witness Fayaj Mohd. with his statement recorded in some other criminal case under Section 161 Cr.P.C. by the police. 3. Learned counsel for the petitioner submits that the learned trial court could not refuse the opportunity to the petitioner to confront the said witness with the said statement under Section 161 Cr.P.C. because Section 162 Cr.P.C. proviso read with Section 145 of the Indian Evidence Act, 1972 clearly permits such statement recorded under Section 161 Cr.P.C. to be used to contradict such witness in the manner provided under Section 145 of the Indian Evidence Act. He relies upon the decision of the Hon'ble Supreme Court in case of Khatri & Ors. Vs. State of Bihar and others – (1981) 2 SCC 493 in which it was held as under:- “Section 162 has been enacted for the benefit of the accused. The bar created by this section is a CW – 4465/07 -Abdul Rehan & Ors. Vs. Addl. District Judge & Ors. Judgment dt.7.8.08 2/3 limited one and has no application if the statement made before a police officer in the course of an investigation under Chapter XII is sought to be used in any proceeding other than an inquiry or trial or even at an inquiry or trial but in respect of an offence other than that which was under investigating at the time when such statement was made. Thus the section does not apply to a civil proceeding or a proceeding under Article 32 or 226 and as such a statement made before a police officer during investigation can be produced and used in evidence in a writ petition under Article 32 or 226 provided it is relevant under the Evidence Act. 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. This bar also can have no application where a case diary is sought to be produced and used in evidence in a civil proceeding or in a proceeding under Article 32 or 226 of the Constitution and particularly when the party calling for the case diary is neither an accused nor his agent in respect of the offence to which the case diary relates.” 4. In view of the aforesaid decision of the Hon'ble Supreme Court, it appears that the learned trial court has erred in refusing CW – 4465/07 -Abdul Rehan & Ors. Vs. Addl. District Judge & Ors. Judgment dt.7.8.08 3/3 opportunity to the petitioner to contradict the witnesses by confronting him with the said statement. 5. Consequently, this writ petition is allowed and the impugned order dated 10.7.2007 is set aside. 6. The learned trial court shall proceed in accordance with law laid down by the Hon'ble Supreme Court. [ DR. VINEET KOTHARI ], J. item No.49 babulal/-