Guhi Mian and Others vs Emperor

Adami, J.

[His Lordship stated facts and referring to the contention on behalf of the petitioner that the remand by the Sessions Judge was illegal and that parts of the evidence taken on remand were not admissible, proceeded:--]

Now it is quite true that u/s 162 statements made to the police by witnesses can only be used by the defence for the purpose of contradicting the prosecution witnesses; but in this case it is quite clear that after a witness had made some statement before the Deputy Magistrate he had asked if he had made that statement to the police and thereafter when the Sub-Inspector was examined he was asked whether the witness had made that statement to him. Neither the witness nor the Sub-Inspector were asked what statements they made and no statement was introduced into the evidence as having been made by the witness before the Sub-Inspector, I agree with the learned Government Advocate that the (provisions of Section 162 do not prevent the prosecution, after a witness has made a statement, asking him simply whether he made that statement to the police, or when a witness has made a statement in his evidence from asking the Sub-Inspector whether in fact the witness had made that statement to him. In doing this there is no use of the Statements recorded by the police during their investigation; the witnesses or the Sub-Inspector are merely asked as to a certain fact. I therefore think that there was nothing wrong in the questions which were put to the witnesses or the Sub-Inspector.

There is no doubt that it was open to the Court tinder Section 428 to call for additional evidence. Mr. Agarwala argues that the section is not intended for the purpose of curing bad evidence or enabling the prosecution to make up for carelessness during the trial. The intention of the section is that the Court should be enabled to do justice, and in this case I think the learned Sessions Judge was justified. He has rightly discarded the evidence which the Deputy Magistrate had allowed to enter into the record on remand and has ruled it to be inadmissible.

Mr. Agarwala also argues that though u/s 428 the Sessions Judge may call for additional evidence he is not enabled by that section to call for a report from the Magistrate as to what happened in Court. This contention is quite true; but in the present case the result of the report was all in favour of the petitioners and on the basis of that report the Sessions Judge refused to give any weight to the evidence as to the finding of the coat in the house of the petitioner Guhi. Furthermore it is to be remarked that no protest was lodged either in the Court of the Sessions Judge or in the Court of the Deputy Magistrate against the order of remand. The defence in fact took advantage of the order in producing five further defence witnesses. I do not think that at this stage, under the circumstances, they are entitled to come forward and object to the remand as a whole.

As the case comes to us on revision, it is not fit for us to look into the facts, and the points I have mentioned are the only points which have been urged before us.

The Courts below have both found as a fact that the constables recognized the petitioners and have believed a third witness; they have disbelieved both the story of enmity on the part of the head constable and the story of his having prompted the constables as to the persons whom they were to name.

On these findings as to the points of law there is no reason to interfere in the case, and the application must be rejected.

Bucknill, J.

I agree.