The accused has the right to inspect and use for cross-examination the statements recorded by the police officer under Section 145, Evidence Act.

( 1 ) THIS revisional application is directed against an order of Sri J. Sarma Sarkar, Presidency Magistrate, Calcutta, rejecting an application for copies of certain statements in the Police Diary and directing that the accused may call for the same for inspecting them and using them for cross-examination of prosecution witnesses, with the consequences as stated in Section 163, Evidence Act. The accused petitioner along with other accused were placed on trial before the learned Magistrate in respect of charges under Sections 147/379, I. P. C. After examination-in-chief of prosecution witnesses the accused petitioners made an application for copies of statements of the witnesses as recorded by the investigation officer. The order complained of was then made by the learned Magistrate.

( 2 ) MR. Dutt appearing for the petitioner has urged that the record of the statement of a witness made by the police officer is a public document within the meaning of Section 74, Evidence Act, and that the accused has the right to inspect it because the accused is given under Section 145, Evidence Act, the right to use any previous statement for the purpose of contradiction and under Section 76, Evidence Act, he has right to get certified copy of any public document which he has the right to inspect. The argument turns on the proposition that the evidence of a witness recorded by a Police Officer in course of investigation is a public document within the meaning of Section 74, Evidence Act. There is, however, authority against this proposition. In -- 'isab Mandal v. Queen Empress', 28 Cal 348 (A), it was held that a written statement recorded by a police officer in the course of investigation did not come within the description of a record within the meaning of Section 35, Evidence Act. If the statement as recorded by the police officer is not a record within the meaning of Section 35, Evidence Act, it follows that it cannot be a public document within the meaning of Section 74. Further in -- 'govt. of Bengal v. Santiram Mandal', AIR 1930 Cal 370 (B), it was held that records of statements made not on oath in course of a departmental enquiry by a government officer, were not public documents. This was not a case of recording of a statement by a police officer, but the recording of a statement by a police officer in the course of investigation would be analogous to the recording of a statement in the course of a departmental enquiry by a government officer. Accordingly, the proposition on which Mr. Dutta rested his argument cannot be accepted as correct. It. must be held that the record of a statement of a witness made by a police officer in the course of investigation is not a public document. It is of course clear that the accused is vitally interested in inspecting such a record of a previous statement made by a witness, because under Section 145, Evidence Act, the accused has a right to contradict a witness with reference to a previous written statement or a statement reduced into writing made by him. Mr. Dutta has urged that if the accused has no right to obtain a certified copy under Section 76, Evidence Act, the trying Magistrate should under Section 165, Evidence Act, call for and inspect the record of the statement made in the course of a police investigation and allow the defence to use the same for the purpose of cross-examination; as in that case the accused might avoid the liability to give the entire record as evidence which might attach to him if he called for the document under Section 163, Evidence Act. Under Section 165, Evidence Act, no doubt the Judge may call for the record of the statement of witnesses made by the police officer during investigation, but he is not bound to do so, and if the accused wants to be certain of using the statement of the witnesses as recorded by the police officer, the accused must call for them under Section 163, Evidence Act. In the case cited before, viz. , AIR 1930 Cal 370 (B), it wa