( 1 ) WHAT has been challenged in this petition filed under Section 482 of the Cr. P. C is the ruling of XXI Addl. City Civil and sessions Judge and special Judge for CBI Cases for Bangalore City, holding that a witness, while he is being examined as a witness in a Court, is entitled to look into a mahazar for refreshing his memory.

( 2 ) IN the trial of the petitioner for offense punishable under sections 143, 147, 148, 149, 323, 307 read with 120-B IPC and sections 3 and 5 of the Explosive Substances Act, P. W. 6-Narayanappa, former Police Inspector, Banasawadi Police Station, Bangalore City, was examined on 29. 11. 2002 to show that he had accompanied the reading party and that he was present at the time of seizure of certain arms from the possession of the accused. After major portion of the examination-in-chief was over, with regard to the particulars of the weapons, vehicles, properties allegedly seized from the possession of each accused, the witness sought for permission to look into the mahazar and P. F. for the purpose of refreshing his memory, and that was objected to by the learned Counsel for the accused on the ground that the said witness was not a signatory to the mahazar and that mahazar having been prepared not under the supervision of that Police Officer and there being a separate statement of that witness recorded under Section 161 of Cr. P. C. , the mahazar could not be looked into by that witness to refresh his memory.

( 3 ) AFTER hearing the learned Counsel for the prosecution and the learned Counsel for the accused, the Court ruled that in view of latter part of section159 of the Indian Evidence Act, a witness could look into the mahazar for refreshing his memory. After the witness looked into the mahazar, he has given the details of the weapons seized from the possession of some of the accused, which portion of the deposition is the subject matter of challenge in the present petition.

( 4 ) IT is argued by Sri C. H. Hanumantharaya, learned advocate for the petitioner that the witness P. W. 6 has been examined as an eye-witness for the raid and since he was not the Investigating Officer, his deposition has to be taken like that of any other witness and that such person, while he is under examination as a witness is not entitled to look into the mahazar prepared not under his supervision, but under the supervision of some other police officer. He read out Section 159 of the Evidence Act and submitted tat the said witness being neither signatory to the mahazar nor the person who wrote the mahazar, he has no right to refresh his memory by looking into that document. He submits that Section 159 of the Evidence Act does not give any such right to a witness to refresh his memory, if the writing is made by someone else and it had not been read out to this witness when it was recorded.

( 5 ) LEARNED HCGP submits that the second part of Section 159 of the Evidence Act provides for a witness to refresh his memory by referring to the writing made by any other person and in the present case, the witness being one of the police officer, who had gone with the investigating officer, the mahazar having been drawn in his presence, he was entitled to look into that document to refresh his memory.

( 6 ) I have carefully perused the provisions of section 159 and 160 of the Evidence Act to consider the points urged by the Counsel.

( 7 ) SECTION 159 of the Indian Evidence Act reads as under: 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 red by the witness within the time aforesaid, if when he read it he knew it to be correct. A perusal of the above provision makes it clear that before permitting a witness to refresh

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