01 June 1951
Supreme Court


Case number: Appeal (crl.) 14 of 1951






DATE OF JUDGMENT: 01/06/1951


CITATION:  1951 AIR  441            1951 SCR  729  CITATOR INFO :  D          1952 SC 214  (19,24)  F          1953 SC  76  (8,9)  D          1954 SC 692  (2)  RF         1956 SC 536  (8)  R          1957 SC 740  (14)  D          1968 SC1313  (5)  RF         1979 SC1791  (19)  R          1980 SC 628  (10,11)

ACT:    Criminal  Procedure  Code (V of 1898), ss. 173  (1),  190 (1)(b),  340  (1), 342, 288--Evidence Act (I  of  1872),  s. 145--Filing  of  second  challan--Whether   vitiates   first report--Examination  of  accused--Importance  of--Statements made in Committal Court--When admissible.

HEADNOTE:     Where the report made by a police officer to the  Magis- trate  complies with the requirements of s. 173 (1)  of  the Criminal  Procedure Code the Magistrate can take  cognisance of the case 730 under  s. 190 (1) (b) of the Code.  The fact that  a  second challan  was put in later would not necessarily vitiate  the first and invalidate the proceedings taken before the second challan was submitted.     The right conferred by s. 340 (1) of the Criminal Proce- dure Code does not extend to a right in an accused person to be  provided with a lawyer by the State or by the Police  or by  the Magistrate. That is a privilege given to him and  it is  his duty to ask for a lawyer if he wants to engage  one, or to engage one himself, or get his relations to engage one for him.  The only duty cast on the Magistrate is to  afford him the necessary opportunity.     An  accused should be properly examined under s. 342  of the  Code  and,  if a point in the  evidence  is  considered important against the accused and the conviction is intended to  be based upon it, then it is right and proper  that  the accused  should be questioned about the matter and be  given an  opportunity of explaining it if he so desires.  This  is



an  important  and  salutary provision  and  should  not  be slurred over.     It  is not a proper compliance of s. 342 to read  out  a long  string of questions and answers made in  the  Committa Court and ask ,the accused whether the statement is correct. A  question of that kind is misleading.  In the next  place, it  is not sufficient compliance to string together  a  long series of facts and ask the accused what he has to say about them.  He must be questioned separately about each  material circumstance  which  is  intended to be  used  against  him. Dwarkanath v. Emperor (A.I.R. 1933 P.C. 124) referred to.     In  view of the words "subject to the provisions of  the Indian  Evidence Act" which occur in s. 288 of the  Criminal Procedure  Code,  the  evidence given by a  witness  in  the Committal  Court cannot be used as substantive  evidence  in the  Sessions  Court unless the witness is  confronted  with those  parts  of his evidence which are to be used  for  the purpose  of  contradicting  him, even though,  if  the  only object of the prosecution is to discredit the evidence given in the Sessions Court by cross-examining him with  reference to  previous statements made in the Committal Court,  it  is not necessary to do so.

JUDGMENT:     CRIMINAL  APPELLATE  JURISDICTION.  Criminal Appeal  No. 14 of 1951. Appeal against the Judgment and Order dated  the 6th  June,  1950, of the High Court of  Judicature  for  the State of Punjab at Simla in Criminal Appeal No. 75 of 1950. Hardayal  Hardy  for  the appellant. S.L. Chibber for the respondent.   731     1951.  June 1.  The following Judgments were delivered.     Bose J.--This is an appeal under article 136 (1) of, the Constitution.  The appellant, Tara Singh, was  convicted  of murder  by  the Additional Sessions Judge  of  Amritsar  and sentenced  to  death. On appeal the High  Court  upheld  the conviction and confirmed the sentence. Tara Singh has made a further appeal to this Court.     As we intend to order a retrial, it will not be  desira- ble  to say anything about the merits of the case. The  case for  the prosecution is that two persons, Milkha  Singh  and Hakam Singh, were murdered in the early hours of the morning of  Friday, the 30th of September, 1949. The former  is  the appellant’s  uncle.  He died on the spot. The latter is  the appellant’s father. He was removed to the hospital and  died there on Friday, the 7th of October, 1949.     The murders are said to have been committed about  three in  the  morning.  The appellant’s  brother  Narindar  Singh reported the occurrence at the Police Station, about 7 miles distant, at 8.45 the same morning. According to this report, Narindar  was  present  and he named the  appellant  as  the assailant.     The  prosecution alleges that there were  three  eyewit- nesses to the assault on the father Hakam Singh, namely  the appellant’s  brother Narindar Singh, his mother  Bibi  Santi and  his  sister Bibi Jito, aged 14. They are said  to  have arrived on the scene while the appellant was still attacking the  father with a kripan. The prosecution version  is  that these three persons saw the uncle Milkha Singh lying dead on the scene of the occurrence with injuries on his person, and it  is said that the appellant admitted to them that he  had killed the uncle.     The appellant is also said to have made an extrajudicial



confession   to three persons, Ujagar Singh (P.W. 8),  Fauja Singh  (P.W. 9) and Gurbakhsh Singh (P.W. 10). The  prosecu- tion  also adduced evidence about three  dying  declarations made  by, the father Hakam Singh in each of which he  impli- cated the appellant. 732 Two  of  these  were made to the police and  the  third  was recorded by a Magistrate on the 1st of October.     The  appellant  was  arrested between 4 and  5  p.m.  on Friday,  30th September, the day of the occurrence, and  was produced before a Magistrate on the 1st October. The  police asked  for a remand to police custody till the 2nd as  their enquiry was not complete. This was granted and the appellant was produced before another Magistrate on the 3rd.     When the appellant was produced on the and October,  the police  handed  over to the Magistrate what they  called  an incomplete  challan  dated the 2nd October, 1949,  and  also produced  certain  prosecution witnesses.  It is  not  clear whether  these witnesses were named in the challan  of  that date or not, but that is a matter which can be cleared up in the  course of the retrial which we intend to order.   Among the  witnesses so produced were three who are said  to  have witnessed the occurrence.  They were the appellant’s brother Narindar,  his mother Bibi Santi and his sister  Bibi  Jito. The Magistrate examined them straightaway and recorded their evidence.     The  appellant was not at the time represented by  coun- sel.     On  the  5th  of October, the police put  in  what  they called  a  complete challan and on the 19th they  put  in  a supplementary challan.  The Magistrate committed the  appel- lant for trial on the 12th of November, 1949.     The  first  objection  taken to the trial  is  that  the Magistrate  had no power to take cognizance of the  case  on the  3rd October. Accordingly, the depositions of the  three so-called eye-witnesses which he recorded on the and  cannot be received in evidence, and if they are excluded, then, for reasons  which  I shall set out hereafter,  the  whole  case against  the appellant collapses because, according  to  the learned  counsel,  there is no other evidence on  which  the conviction can properly be based.     This  part  of  the argument is based  on  section  190, Criminal Procedure Code. It is contended that cogni-     733 zance of an offence can only be taken in one of ways set out in that section.  We are concerned here with the method  set out  in clause (b)of sub-section (1), namely "upon a  report in writing of such facts made by any police officer." It  is contended  that the police are not permitted to send  in  an incomplete  report because of the provisions of section  173 (1) which runs as follows :--     "Every  investigation under this Chapter shall  be  com- pleted  without  unnecessary  delay, and as soon  as  it  is completed,  the  officer  in charge of  the  police  station shall--     (a) forward to a Magistrate empowered to take cognizance of  offence  on a police report, a report the  in  the  form prescribed etc  ......  "     I need not express any opinion about this because, in my opinion,  the  challan which the police referred  to  as  an incomplete  challan, namely, the one of 2nd  October,  1949, was in fact a complete report within the meaning of  section 193(1)  (b),  Criminal  Procedure Code,  read  with  section 173(1).     When  the police drew up their challan of the 2nd  Octo-



ber,  1949, and submitted it to the court on the  3rd,  they had  in  fact completed their investigation except  for  the report  of  the  Imperial Serologist and the  drawing  of  a sketch map of the occurrence.  It is always permissible  for the  Magistrate to take additional evidence not set  out  in the challan. Therefore, the mere fact that a second  challan was put in on the 5th October would not necessarily  vitiate the  first. All that section 173(1) (a) requires is that  as soon  as the police investigation under Chapter XIV  of  the Code  is complete, there should be forwarded to  the  Magis- trate  a  report in the prescribed form "setting  forth  the names of the parties, the nature of the information and  the names  of the persons who appear to be acquainted  with  the circumstances  of the case." All that appears to  have  been done  in  the  report of the 2nd October  which  the  police called their incomeplete challan. The witnesses named in the Second 734 challan  of  the  5th October were not  witnesses  who  were -acquainted   with  the  circumstances  of the  case."  They were  merely formal witnesses on other  matters.   So   also in   the  supplementary challan of the 19th.  The  witnesses named are the 1st Class  Magistrate, Amritsar, who  recorded the dying declaration, and the Assistant Civil Surgeon. They are not witnesses who were acquainted with the circumstances of  the  case."  Accordingly, the challan which  the  police called  an  incomplete  challan was, in  fact   a  completed report  of  the kind which section 173 (1) (a) of  the  Code contemplates.  There  is no force in this argument.  and  we hold  that  the  Magistrate took proper  cognisance  of  the matter.     The  next point urged was that when the  Magistrate  re- corded  the evidence of the three eye-witnesses, he did  not afford the appellant an opportunity of being represented  by counsel though he is given that right by section 340 (1)  of the Criminal Procedure Code. There might have been force  in this  contention because     the peculiar  circumstances  of this  case,  had it not been for the fact that  the  inquiry continued  after the date on which the  three  eye-witnesses were  examined  and the appellant made  no  complaint  about this.   He  did  not at any of  the  subsequent  proceedings before  the  Committing  Magistrate ask  for  permission  to engage  a counsel or indicate in any way that he desired  to be represented by one.    I  have  referred to the peculiar circumstances  of  this case.   I say that because this is a case in which  the  ac- cused  is said to have killed his father and his  uncle.  As far as I can gather from the record, his only relatives  are his  brother Narindar, his mother Bibi Santi and his  sister Bibi Jito. Ordinarily, when a man is arrested for murder and is  proceeded  against and he wants to be  represented,  his relatives come to his rescue and engage counsel for him, but in  a case like this, if the prosecution story is true,  the only  relatives the man has would not help him  because,  in their  eyes, he was a parricide and they, being filled  with indignation against him, took all steps they could to bring   735 him to justice.  On the other hand, if the present story  of the appellant is correct and the witnesses were  intimidated by  the police, equally they would take no steps  to  assist the  appellant.   Either way, the appellant  would,  in  the peculiar  circumstances of the case, be helpless  from  that point of view.  Therefore, had it not been for the fact that there  were  subsequent proceedings in which  the  appellant could  have  raised this objection had there been  any  sub-



stance  in  it, we might have considered the  argument  with more  favour. But the appellant’s subsequent  conduct  indi- cates that he had no intention of engaging counsel and  made no  grievance of the fact. I need hardly say that.the  right conferred  by section 340 (1) does not extend to a right  in an accused person to be provided with a lawyer by the  State or by the police or by the Magistrate.  That is a  privilege given  to him and it is his duty to ask for a lawyer  if  he wants  to  engage one and to engage one himself or  get  his relations  to engage one for him. The only duty cast on  the Magistrate  is  to  afford him  the  necessary  opportunity. There is no force in this contention either.     The  next point taken regarding the committal  stage  of the  case is that the Committing Magistrate did not  examine the  appellant  properly under sections 209 and 342  of  the Criminal  Procedure Code.  Section 342 (1) states that  "for the  purpose of enabling the accused to explain any  circum- stances appearing in the evidence against him, the Court may etc..."  And sub-section (3) states that "the answers  given by  the  accused  may be taken into  consideration  in  such inquiry  or trial." Further, section 287 requires that  "the examination  of the accused duly recorded by or  before  the Committing  Magistrate shall be tendered by  the  prosecutor and read as evidence." (This refers to the sessions  trial). It is important therefore that an accused should- be proper- ly examined under section 342 and, as their Lordships of the Privy  Council indicated in Dwarkanath v. Emperor (1) if  a. point in the evidence is (1) A.I.R. 1933 P.C. 124 at 130. 736 considered important against the accused and the  conviction is intended to be based upon it, then it is right and proper that  the accused should be questioned about the matter  and be  given an opportunity of explaining it if he so  desires. This  is  an important and salutary provision and  I  cannot permit it to be slurred over. I regret to find that in  many cases  scant attention is paid to it, particularly  in  Ses- sions Courts. But whether the matter arises in the  Sessions Court or in that of the Committing Magistrate, it is  impor- tant that the provisions of section 342 should be fairly and faithfully observed.     So  far  as the committal proceedings in this  case  are concerned,  the examination was on the whole fair  and  full for the purposes of a Committal Court though I feel the form of the questions put could have been a little different.  As they  stand, the questions read more like  cross-examination than  an  examination under section 208 (2).  I  refer,  for example,  to  the first question which  reads  as  follows:- issueless     ’’Was  Milkha  Singh deceased your uncle  issueless  and wanted  to gift away his land to the Gurdwara  Baba  Bakala, which fact you resented ?" and to the second question which reads--  "Did you also resent your father mortgaging his land ?"     The  proper form in these two cases would have been  to. tell  the  accused who suggested that he resented  the  fact that  his  uncle who was issueless wanted to gift  away  his land, and, in the second question, who said that he resented his father mortgaging his land, and then, after having  told him  that, to ask him after each question whether he  wanted to  say  anything about the matter.  However, the  point  is trivial in this case because the questions put are based  on the  evidence of witnesses before the Committing  Magistrate and the questioning was sufficient for the Committing Magis- trate’s purposes.  All that he. had to consider was  whether under  section  209 (1) there were  sufficient  grounds  for



committing  the appellant for trial and not 737 whether, on an appreciation of the whole evidence and  other material  in the case, including witnesses for the  defence, the  charge  against him was proved.  I am of  opinion  that despite some shortcomings the committal was good.     I  turn next to the proceedings in the  Sessions  Court, There  are  two grave defects there which,  in  my  opinion, vitiate the trial.  The first is that the examination of the appellant  was  not  in accordance with  the  provisions  of section  342.   The second is that when the  depositions  of some of the witnesses examined before the Committing  Magis- trate  were  brought on record in the Sessions  Court  under section 288, the witnesses who made the statements were  not confronted  with  their previous statements as  required  by section 145 of the Evidence Act.     Dealing  first with the examination of the appellant  by the Sessions Judge, all he did was to read over the examina- tion  of the accused in the Committal Court and then  record the following statements and answers:--       "Q. Did you make the statement on 9th November,  1949, as read out to you, and is it correct ?  A. Yes. Q. Have you anything else to say ?     A. No. I am innocent and the statement of the  witnesses in  the  Court of the Committing  Magistrate  were  recorded without  any notice to me.  I could not,  therefore,  engage any counsel. Q. Do you wish to produce any defence ? A.   No."     Section 342 requires the accused to be examined for  the purpose  of enabling him "to explain any  circumstances  ap- pearing in the evidene against him."  Now it is evident that when the Sessions Court is required to make the  examination under this section, the evidence referred to is the evidence in  the  Sessions Court and the circumstances  which  appear against  the  accused  in that Court. It  is  not  therefore enough to 738 read  over the questions and answers put in  the  Committing Magistrate’s  Court and ask the accused whether he has  any- thing to say about them. In the present case, there was  not even  that. The appellant was not asked to explain the  cir- cumstances  appearing  in the evidence against him  but  was asked  whether  the statements made  before  the  Committing Magistrate  and his answers given there were  correctly  re- corded.   That does not comply with the requirements of  the section.  There  is also more than that in  this  case.  The evidence recorded in the Committal Magistrate’s Court is not as  full  and as complete as the evidence  recorded  in  the trial  before  the  Sessions Judge.  Accordingly,  it  often happens  that  evidence is given in the Sessions  Court  and facts are disclosed which do not appear on the record of the Committing  Magistrate.  If the Judge intends to  use  these against  the accused, it is clearly not enough  to  question him about matters which occurred in the Committal Court, for material  of  this kind will not be found in  the  committal record  in  these circumstances.  That has happened here.     The  Sessions  Judge  relied on  the  following  circum- stances. First of all, he characterised as a "most  signifi- cant piece of evidence" the fact that the three eyewitnesses had  admitted before him that the appellant was  present  in the  Deohri before they went to the scene of the  occurrence on  hearing the victims’ cries and that these witnesses  did not suggest that there was anybody else who was  responsible



for  the  injuries to the deceased. Now, this  was  evidence which  was recorded exclusively in the Sessions  Court.  The eye witnesses before the Sessions Judge had resiled from the previous  statements which they made in the  committal  pro- ceedings.   Accordingly,  a questioning  by  the  Committing Magistrate would not and could not cover the point made here and, naturally, the Magistrate has not questioned the appel- lant about that circumstance.     As the three eye witnesses had resiled from their state- ments made in the committal proceedings, the Sessions  Judge brought their depositions on record 739 under  section 288, Criminal Procedure Code. He next  relied on the evidence of these witnesses as recorded in the  Court of  the  Committing Magistrate.  One point he  used  against them  was the evidence of motive which these witnesses  sup- plied  in the committal proceedings. The appellant  was  not told what that evidence was nor was he asked to explain  it. He  was questioned about this motive in the  committal  pro- ceedings by the Committing Magistrate, but even there he was not  told  who had given the evidence, and the  material  on which  the  Committing Magistrate relied  to  establish  the presence of motive was not disclosed.     The  Sessions  Judge also relied on the  fact  that  the appellant  had confessed to the three eye witnesses that  he had killed his uncle and injured his father. There is not  a single  question  regarding that either in  the  ’Committing Magistrate’s Court or in the Sessions Court.     Another ground on which the Sessions Judge proceeded was the  extra-judicial  confessions made by  the  appellant  to Ujagar Singh, Fauja Singh and Gurbakhsh Singh. The appellant was  questioned  about an extra judicial confession  by  the Committing Magistrate but not about one made to these  three persons.  What the Committing Magistrate asked was :__     "Did  you confess on 30th September, 1949,  at  Timmowal before Ujagar Singh, Mangal Singh P. Ws. etc., that you  had killed Milkha Singh and caused injuries to your father ?"     It  will  be seen that Fauja Singh and  Gurbakhsh  Singh were  not mentioned at all, and yet the Sessions Judge  con- sidered  them  "respectables of the village" and  said  that they  were independent witnesses. If the appellant had  been asked about them, he might have been able to show that  they were  not  disinterested and that they had some  motive  for implicating him falsely, or that they were not there.     Next,  the  Sessions  Judge considered  that  "the  most important piece of evidence damaging to the accused" was the dying declaration of Hakam Singh recorded  740 by  the Magistrate, P.W. 5. Neither the Sessions  Judge  nor the  Committing  Magistrate questioned the  appellant  about that.  The Sessions Judge also relied on the two  statements of  Hakam  Singh made before the police, one  of  which  the police  recorded  as his dying declaration. Again,  not  one word was put to the appellant about this. Now,  section 342(2) requires that the answers given by  the accused may be taken into consideration. If the accused  had been  properly questioned and had given reasonable  explana- tions  and the Sessions Judge had omitted to take them  into consideration, it is obvious that that would have constitut- ed  a grave defect in his judgment. How much graver  is  the defect when the accused is not questioned at all and is  not given an opportunity of explaining the circumstances   which are intended to be used against him.  The unfairness of  the Sessions  Judge’s conclusions can be gathered from the  fact that he (the Sessions Judge) considered the evidence of  the



eye  witnesses before him (as distinct from the  depositions brought on record under section 288) material and then,  not having asked the appellant for any explanation, he said :--       "The accused himself has not rendered any  explanation as to at whose hands the two deceased had met their death."       This is precisely what the Privy Council commented  on in  Dwarkanath  v..EmPeror.(1) where the High  Court  having relied on a piece of evidence which it considered vital went on  to  say that the accused had not  explained  it.   Their Lordships  remarked  that that "deprives of  any  force  the suggestion that the doctor’s omission to explain what he was never  asked to explain supplies evidence on which the  jury should infer etc."       The High Court has fallen into the same error and  has based   its  decision  on  material which the appellant  was not  asked to explain. For example, the learned Judges  rely on the evidence of the three eye (1) A.I.R. 1933 P.C. 184 at 135.     741 witnesses  before the Committing Magistrate. They also  rely on  the  fact  that Narindar’s evidence  in  the  Committing Magistrate’s Court is corroborated by the First  Information which  he  gave to the police. The appellant was  not  ques- tioned  about these matters either in the Sessions Court  or by the Committing Magistrate. The High Court also relies  on the  evidence  of the three witnesses who  speak  about  the extra-judicial confession and the learned Judges state  that these  witnesses  "are not suggested to be in  any  way  un- friendly  to  the appellant and they seem to be  persons  of respectability."   Here,  again, if the  appellant  was  not asked whether these witnesses were unfriendly or not, it  is not  fair to use the absence of such a suggestion  as  some- thing  which  tells against the appellant. It  is  true  the accused  can cross-examine as to comity but he is  not  con- fined to that. It may be that in a given case cross-examina- tion  would  be futile, for it would only elicit  a  denial, whereas  a  statement  made by the accused  which  the  Code directs  should  be used as evidence, for  or  against  him, might be of great value. In any event, the Code directs that the  accused  shall be afforded these opportunities  and  an omission to do so vitiates the trial if prejudice occurs  or is likely to occur.     The High Court also bases its conclusion on the  circum- stantial evidence arising from the production of the  Kripan and  the  recovery of the shirt from the  appellant.   Those articles  are  said  to be stained with  human  blood.   The appellant was not asked to give any explanation about  this. The  Serologist’s  report  had not been  received  when  the appellant  was  questioned  by  the  Committing  Magistrate. Therefore, he could not be asked to explain the presence  of human  blood  stains on the Kripan.  All he  was  asked  was whether  the blood-stained Kripan was recovered at  his  in- stance.  That is not enough.  He should also have been asked whether he could explain the presence of blood stains on it. The two are not the same. Then, in the Sessions Court  there was  the  additional  evidence of  the  Imperial  Serologist showing that the Kripan had 742 stains of human blood on it. That was an additional and very vital piece of evidence which the appellant should have been afforded an opportunity of explaining  I  cannot stress too strongly the importance  of  Observing faithfully and fairly the provisions of section 342,  Crimi- nal  Procedure Code. It is not a proper compliance  to  read out  a  long  string of questions and answers  made  in  the



Committal Court and ask whether the statement is correct.  A question of that kind is misleading. It may mean either that the  questioner wants to know whether the recording is  cor- rect,  or  whether the answers given are  true,  or  whether there is some mistake or misunderstanding despite the  accu- rate  recording.   In the next place, it is  not  sufficient compliance to string together a long series of facts and ask the accused what he has to say about them. He must be  ques- tioned separately about each material circumstance which  is intended  to  be used against him. The whole object  of  the section is to afford the accused a fair and proper  opportu- nity  of explaining circumstances which appear against  him. The  questioning must therefore be fair and must be  couched in  a  form which an ignorant or illiterate person  will  be able  to  appreciate and understand. Even  when  an  accused person  is not illiterate, his mind is apt to  be  perturbed when he is facing a charge of murder. He is therefore in  no fit  position  to understand the significance of  a  complex question.  Fairness  therefore requires that  each  material circumstance  should be put simply and separately in  a  way that  an illiterate mind, or one which is perturbed or  con- fused,  can  readily appreciate and understand.   I  do  not suggest  that every error or omission in this  behalf  would necessarily  vitiate  a trial because I am of  opinion  that errors  of  this type fall within the  category  of  Curable irregularities. Therefore, the question in each case depends upon the degree of the error and upon whether prejudice  has been occasioned or is likely to have been occasioned. In  my opinion,  the  disregard of the provisions of  section  342, Criminal Procedure Code, is so     743 gross in this case that I feel there is grave likelihood  of prejudice.     But  this  is not the only error. Two of the  three  eye witnesses whose depositions before the Committing Magistrate were  brought on the sessions record under section 288  were not  confronted with their former statements in  the  manner required by section 145, Evidence Act.  All that happened is that  they were asked something about their previous  state- ments  and they replied that they were made under  coercion. Now, section 145 of the Evidence Act states that :--     "A  witness may be cross-examined as to previous  state- ments  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  .....  "     This is all that seems to have occurred in the eases  of Bibi Santi (P.W. 8) and Bibi Jito (P.W. 7).  But the section goes on :--     "but,  if it is intended to contradict him by the  writ- ing,  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."     Now,  it  is evident that one of the  main  purposes  of using  the previous statements was to contradict  and.  dis- place  the evidence given before the Sessions Court  because until  that evidence was contradicted and  displaced,  there was no room in this case for permitting the previous  state- ments  to be brought on record and used under  section  288. Therefore,  as these statements were not put to  these  wit- nesses  and as their attention was not drawn to them in  the manner required by section 145, Evidence Act, they were  not admissible  in  evidence.   The observations  of  the  Privy Council  in Bal Gangadhar Tilak v. Shriniwas  Pandit(1)  are relevant here.     In  the ease of Narindar Singh, his  previous  statement



does seem to have been put to him in the proper (1) 42 I.A. 135 at 147. 744 way.   The  particular  portions on  which  the  prosecution desired to contradict him were read out and he was  afforded an opportunity of explaining them.  So, the  inadmissibility extends only to the other two witnesses.     There  is  some  difference of  opinion  regarding  this matter  in the High Courts.  Section 288 provides  that  the evidence  recorded  by  the  Committing  Magistrate  in  the presence of the accused may, in the circumstances set out in the  section,  "be treated as evidence in the case  for  all purposes  subject to the provisions of the  Indian  Evidence Act,  1872.."   One line of reasoning is that  section  145, Evidence Act, is not attracted because that section  relates to  previous statements in writing which are to be used  for the purpose of contradiction alone.  Statements of that kind do  not become substantive evidence and though the  evidence given  in the trial can be destroyed by a  contradiction  of that  kind, the previous statements cannot be used  as  sub- stantive  evidence and no decision can be grounded on  them. But under section 288, Criminal Procedure Code, the previous statement becomes evidence for all purposes and can form the basis of a conviction.  Therefore, according to this line of reasoning, section 145 of the Evidence Act is not attracted. Judges  who hold that view consider that the  provisions  of the  Evidence Act referred to are those relating to  hearsay and matters of that kind which touch substantive evidence.      The  other line of reasoning is that section 288  makes no exception of any provision in the Evidence Act and there- fore section 145 cannot be excluded.  As that section is one of the provisions of the Act, the statements are subject  to its  provisions  as well.  All that section 288 does  is  to import into the law of evidence something which is not to be found  in the Evidence Act, namely, to make a  statement  of this kind substantive evidence, but only when all the provi- sions of the Evidence Act have been duly complied with.      In  my opinion, the second line of reasoning is  to  be preferred.  I see no reason why section 145 of the     745 Evidence Act should be excluded when section 288 states that the previous statements are to be "subject to the provisions of  the Indian Evidence Act."  Section 145 falls fairly  and squarely within the plain meaning of these words.  More than that.  This is a fair and proper provision and is in  accord with  the sense of fairplay to which Courts are  accustomed. Even the learned Judges who take the first view consider for the most part that though it is not obligatory to confront a witness  with his former statement when section 288  is  re- sorted  to, it is always desirable that that should be  done if only for the reason that an omission to do so weakens the value  of the testimony. I am of opinion that the matter  is deeper than that, and, giving effect to the plain meaning of the words "subject to the provisions of the Indian  Evidence Act" as they stand, I hold that the evidence in the  Commit- tal  Court cannot be used in the Sessions Court  unless  the witness  is  confronted with his previous statement  as  re- quired  by section 145 of the Evidence Act.  Of course,  the witness  can be cross-examined about the previous  statement and that cross-examination can be used to destroy his testi- mony  in the Sessions Court. If that serves the  purpose  of the  prosecution, then nothing more is required, but if  the prosecution wishes to go further and use the previous testi- mony to the contrary as substantive evidence, then it  must, in  my opinion, confront the witness with those parts of  it



which  are to be used for the purpose of contradicting  him. Then  only can the matter be brought in as substantive  evi- dence  under section 288.  As two of the eye witnesses  were not confronted in the manner required by section 145,  their statements  will have to be ruled out, and if that is  done, the material on which the conviction is based is  considera- bly weakened.     I  have considered anxiously whether this is a  case  in which  we  should direct a retrial de novo  or  whether  the retrial  should be from the stage at which the  irregularity occurred or whether we should refuse to allow a retrial  and acquit  the  appellant. Having given my anxious  thought  to this matter, I am of opinion that 746 there  should  be a retrial de novo in  the  Sessions  Court either  by  the  same or by some. other  Sessions  Judge.  I consider it inexpedient to say more than this, lest I preju- dice the issue one way or the other.     The  conviction and sentence are set aside and the  case is  sent back to the High Court with a direction  that  that Court  will order a retrial de novo in the  Sessions  Court, treating the committal as good. FAZL AI.I J.--I agree and have nothing to add.     PATANJALI SASTRI J.--I agree and have nothing further to add.     DAs  J.  --I agree to the order proposed by  my  learned brother Bose. Re-trial ordered. Agent for the appellant: Ganpat Rai. Agent for the respondent: P.A. Mehta. 747