( 1 ) [his Lordship after narrating the facts on the case which led to the death of one person and injury to another who were alleged to be connected with smuggling of silver further observed: ]

( 2 ) THE next day i. e. on 21st February 1971 the investigation proceeded further and during the course of this investigation the accused is said to have given a cross complaint as found at Ex. 102. One of the questions which is debated in this appeal is whether this cross complaint amounts to a statement recorded by the police during the course of the investigation of this case and if so whether it is admissible. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

( 3 ) ANOTHER controversial point which is involved in this appeal is as regards the admissibility of the cross complaint found at Ex. 102. Here the contention of the defence is that this document is really speaking a statement of the accused recorded by the investigating officer during the course of the investigation of this case and therefore it is not admissible in evidence. On this point the learned trial Judge has held in favour of the prosecution because according to him this document does not amount to a statement of the accused but rather amounts to an independent cross complaint made by the accused when he was in police custody. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . [ His Lordship further observed: ]

( 4 ) THE last question which remains to be considered is about the admissibility of the complaint of the accused found at Ex. 102. The question is whether this is a genuine complaint or merely a statement of the accused recorded during the course of the investigation. In other words the objection which is raised by the defence against its admissibility is only confined to sec. 162 of the Criminal Procedure Code. Sec. 162 of the Criminal Procedure Code says that no statement made by any person to a police officer in the course of an investigation under Chapter XIV shall if reduced to writing be used for any purpose at any inquiry or trial in respect of any offence under investigation at the time when such state. ment was recorded. This section therefore prohibits the use of a police statement at a trial if the said statement is recorded daring the course of investigation of the offence in question under Chapter XIV of the Code. It is now a settled position in law that the expression person which is used in sec. 162 includes even a person who is subsequently accused of the offence for which he is tried. Therefore a statement made even by an accused to a police officer in the course of investigation under Chapter XIV of the Code would be hit by sec. 162. Therefore if the cross complaint in this case is found to be a statement made in the course of investigation of the offence for which the accused is tried it cannot be received in evidence as it would be covered by the bar contemplated by sec. 162. However if it is found to be a genuine complaint which has nothing to do with the course of investigation undertaken under Chapter XIV of the Code sec. 162 has no application and hence it must be received in evidence. The reason is that even a person accused of an offence has a right to set the law into motion under secs. 154 155 and 156 of the Code of Criminal Procedure for the offences committed against him.

( 5 ) THEREFORE the real controversy between the parties is whether the document in question is a genuine complaint or merely a police statement which is given a false garb of a complaint. It need not be emphasised that a statement does not become a complaint merely because it is couched in a particular language or is given a particular form or because it is described as such. In order to decide whether it is a genuine complaint or is a statement hit by sec. 162 Criminal Procedure Code the court has to take into account not only the intrinsic character of the statement but also the circumstances u