Section 6 of the Commissions of Enquiry Act, 1952, does not bar the use of statements made before the Commission for the purpose of cross-examining a witness under S. 145 of the Evidence Act, as such use does not constitute a use "against" the person who made the statements within the meaning of S. 6.

VAIDYA, J.:- The above criminal revision application raises an important question under S. 6 of the Commissions of Enquiry Act, 1952.

2. The application is filed by the State against an order passed on Sept. 18, 1973 by the Additional Sessions Judge, Thana, overruling an objection raised by the Special Public Prosecutor to a question being asked to the prosecution witness, in Sessions Case No. 36 of 1973, pending before the learned Additional Sessions Judge against the 65 opponents in the above revision application. The said opponents are charged by the learned Additional Sessions Judge under Sections 143, 147, 148, 307, 332, 149, 152 and 353 as mentioned in the charge, with regard to certain incidents which occurred in the communal riots in Bhiwandi in May 1970. It is not necessary to mention, for the purposes of this revision application, the details of the said charge.

3. After the examination-in-chief of prosecution witness No. 1 Jayasingh Sadashiv Nimbalkar, the Police Sub-Inspector was over and in the course of the cross-examination, the witness admitted that he had filed an affidavit before Justice Madon Commission, constituted under the Commissions of Enquiry Act, 1952 for inquiring into certain questions relating to the communal riots at Bhivandi and some other places. The witnesses also admitted that the affidavit pertained to the course and causes of communal disturbances at Bhivandi on May 7, 1970 and that he had described the incident dated May 7, 1970, in respect of which the opponents were charged in the sessions case, as it took place; and that the said affidavit was filed before Justice Madon Commission on Sept. 24, 1970.

4. After this admission of the witness, the following question was asked to him:-

"Did you state in the said affidavit filed before Madon Commission that you had noticed Gulam Rasul accused No. 5 and his two sons aged 20 or 22 years throwing stones, acid bulbs, sticks and glass bottles through the two windows of Hidayatulla Manzil at the processionists?"

At this stage, the learned Special Public Prosecutor, who appeared for the State, objected to the question on the ground that S. 6 of the Commissions of Enquiry Act prohibits the use of the statement made before the Commission for the purpose of contradicting the witness.

5. He gave his submissions in writing relying on the decision of the Supreme Court in Ram Krishna Dalmia v. Shri Justice S. R. Tendolkar, AIR 1958 SC 538. He also referred to the decision of a learned single Judge of this Court in Sohanlal Prahladrai v. The State of Maharashtra, 66 Bom LR 353 : (AIR 1965 Bom 1) and contended that the decision did not lay down good law inasmuch as the aforesaid Supreme Court decision was not brought to the notice of the Single Judge. He relied upon a later decision of the Division Bench of the M. P. High Court in Puhupram v. State of Madhya Pradesh, 1968 MP LJ 629 and contended that having regard to the said decision which followed the Supreme Court decision and dissented from the judgment of the single Judge of this Court, the defence should not be permitted to make use of the statement which the witness had made in his affidavit before Justice Madon Commission.

6. The learned Additional Sessions Judge, however, overruled the tion raised by the Special Public Prosecutor on the ground that in Dalmia's case, (AIR 1958 SC 538) the Supreme Court was not called upon to consider whether the use under S. 145 of the Evidence Act of an earlier statement before the Commission was barred under S. 6 of the Commissions of Enquiry Act, 1952.

7. On a comparison of Section 6 of the Commissions of Enquiry Act, 1952 with S. 132 of the Evidence Act, 1872 and on considering it along with S. 145 of the Evidence Act, he held:

"Taking all these aspects into account and reading the provision of S. 6 of the Act, I think that there is no force in the objection raised on behalf of the State and the earlier statement if otherwise relevant can be used for the purpose of