A statement made to a police officer under Section 161 CrPC cannot be used as the basis for a perjury prosecution under Section 193 IPC.

( 1 ) IN this revisional application the petitioner prays for quashing the proceeding in C. R. Case No. 111 of 1987 under Section 193, Indian Penal Code pending against her in the court of the learned Chief Judicial Magistrate, Berhampore. It arises thus.

( 2 ) OVER the suicidal death of one Shibani Das by burning on 6. 5. 84 her husband Parasar Das was arraigned before a learned Additional Sessions Judge, Murshidabad, in Sessions Trial No. 2 of January 1987 to answer a charge under Section 306, Indian Penal Code. On the date of incident the petitioner, who is a nurse, was on duty at the New Berhampore General Hospital, where the victim Shibani Das was removed for treatment.

( 3 ) ACCORDING to the prosecution after being removed to the hospital the victim made a dying declaration before the petitioner and some other nurses to the effect that she chose the path of self-immolation by fire, being unable to bear the tortures by her husband.

( 4 ) DURING Trial, the petitioner was examined as witness No. 3 for the prosecution obviously for the purpose of proving the alleged dying declaration of the deceased. In her examination-in-chief, she admitted that on 6. 5. 84 she was on duty at the hospital as a nurse but stated that she failed to remember whether on that date any female patient was admitted to the hospital with burn injuries. At this, the learned Additional Public Prosecutor filed a petition for declaring her hostile. The prayer was allowed by the Court, and, as usual, she was cross-examined by the prosecution.

( 5 ) IN cross-examination, she was confronted with her statement before the Investigating Officer which, when translated into English, reads as under:

( 6 ) "on 6. 5. 84 at or about 3 P. M. a patient named Shibani Das was admitted to the hospital with burn injuries. I and the other sisters having asked her as to the cause of her injuries she stated that being disgusted with the tortures meted out to her by her husband, she had herself done the act (that is, set herself on fire ). As her condition was very bad, we did not. make any further inquiry from her. "

( 7 ) BEING so confronted, she stated that she did not remember to have made any such statement to the Investigating Officer. She also stoutly denied the suggestion that she was depositing falsely in order to save the accused.

( 8 ) THEREAFTER, the learned Additional Public Prosecutor filed a petition before the learned Additional Sessions Judge alleging that the petitioner had knowingly and willfully given or fabricated false evidence inasmuch as her statement recorded under Section 101, Criminal Procedure Code, was otherwise and praying for a direction upon her to show cause why a complaint should not be lodged against her in respect of the offence under Section 193, Indian Penal Code,

( 9 ) BY his Order, dated 26. 3. 87, the learned Additional Sessions Judge made a complaint against the petitioner to the learned Chief Judicial Magistrate, Berhampore for having committed an offence under Section 193, Indian Penal Code by willfully and deliberately giving a false evidence in Sessions Trial No. 2 of January, 1987. Along with the complaint copies of the judgment and the petition filed by the learned Additional Public Prosecutor were also forwarded to the learned Chief Judicial Magistrate.

( 10 ) ON 6. 1. 88, the learned Chief Judicial Magistrate, on the basis of the aforesaid complaint, took cognizance of the offence under Section 193, Indian Penal Code, overruling the objection raised by the petitioner and framed charge against her under Section 193, Indian Penal Code, fixing 12. 3. 88 for evidence. The above proceeding was registered as C. R. Case No. 111 of 1987. As stated already, the Order of the learned Chief Judicial Magistrate initiating the proceeding under Section 193, Indian Penal Code, is the subject matter of challenge in this revisional application. 10a. Mr. Sengupta, learned Advocate appearing in support of the Rule,