An omission in a statement made under Section 162 of the Criminal Procedure Code does not amount to a contradiction and cannot be used as such. The term 'statement' in Section 162 refers to the entirety of the facts stated by the witness to the police officer during the investigation.

( 1 ) THE petitioners are the accused in. C. C. No. 2038 of 1957 on the file or the First Class magistrate, Bangalore. They are accused of an offence under Section 302, I. P, C. The case is at the stage of preliminary enquiry. In the course of the cross-examination of p. w. 2, his statement under Section 162, Criminal P. C. , was marked as Exhibit D-3. Exhibit D-3 was read out to the witness. He was asked as to whether certain facts deposed to by Win in court are found in that statement. By this process the learned Advocate for the accused wanted to establish certain omission. During the re-examination, the Prosecutor wanted to explain the omissions in question with reference to a further statement made by the witness to the police during the investigation. This was objected to by the learned Counsel for the petitioners. The basis of his objection was that he had contradicted the witness with reference to a statement made by him to the Police on 15-9-1957 at 7-30 a. m. whereas re-examination referred to the statement made by the same witness to the police at about 3-30 p. m. According to his contention the Police could not make use of this statement as it was a different statement from the one which he had used for the purpose of contradiction. The learned Magistrate rejected this contention holding that the two statements can be construed as part of the same statement. The petitioners have come up in revision as against this order

( 2 ) AT the very outset I would like to say that the course adopted by the learned counsel for the petitioners and permitted by the Court is wholly unwarranted by law. The accused could not have been permitted to mark the entire statement.

( 3 ) THE two questions that arise for my consideration are: (1) Does an omission in a statement made and recorded under Section 162, Criminal P. C. . amount to a contradiction and could the same be used as such under the said section and (2) what is meant by 'statement' in Section 162, criminal P. C. , does it mean the entirety of facts stated by the witness to the investigating officer during the investigation or does each record constitute a separate statement?

( 4 ) IT would be convenient to set out Sections 161 and 162, Criminal P. C. Section 161, Criminal p. C. , is as follows :

" (1) Any police-officer making an investigation under this Chapter or any police-officer not below such rank as the State Government may. by general or special order, prescribe in this behalf acting on the requisition of such officer 'may examine orally' any person supposed to be acquainted with the facts and circumstances of the case. (2) Such person shall be "bound to answer all question relating to such case put to him by such officer, other than questions the answers to which would have a tendency to expose him to a criminal charge or to a penalty or forfeiture. (3) The notice-officer 'may reduce into witing any statement made to him in the course of an examination under this section, and if he does so, he shall make a separate record of the statement, of each such person whose statement he records. "

( 5 ) SECTION 162, Criminal P. C. , is as follows:

" (1) 'no statement made by any person to a police officer in the course of an investigation' under this Chapter shall, if reduced Into writing, be signed by the person making it; nor shall any such statement or any record thereof, whether in a police diary or otherwise, or any part of such statement or record, be used for any purpose (save as hereinafter provided) at any inquiry or trial in respect of any offence under investigation at the time when such statement was made: provided that when any witness is called for the prosecution in such inquiry or trial "whose statement has been reduced into writing" as aforesaid, any part of his statement, if duly proved, may be used by the accused, and with the permission of the Court, by the prosecution, to contradict such witness in the manner provided by Section 145 of the Indian Eviden

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