J.B. Pardiwala, J.

1. By this application under Article 227 of the Constitution of India, the State of Gujarat seeks to challenge the legality and validity of the order dated 8th April, 2013 passed below exhibit-91 in Sessions Case No. 2 of 2012 by the learned Additional Sessions Judge, Tapi at Vyara and order dated 6th June, 2013 passed by the learned Additional Sessions Judge, Tapi at Vyara below exhibit-103 in Sessions Case No. 2 of 2012. It appears that the respondent-original accused has been charged with the offence punishable under Sections 364(A), 302 and 201 of the Indian Penal Code. In the course of the investigation, the police got few statements of the witnesses recorded under Section 164 of the Code of Criminal Procedure through the learned Judicial Magistrate, First Class. In the course of the trial, an application exhibit-103 was filed by the State praying to issue summons for the purpose of examining the learned Judicial Magistrate, First Class who had recorded the confessional statements of those witnesses under Section 164 of the Code of Criminal Procedure.

2. It appears that the learned Additional Sessions Judge rejected such a prayer on the ground that there was no need to examine the learned Judicial Magistrate, First Class since the witnesses whose confessional statements were recorded under Section 164, had supported the case of the prosecution. It is not in dispute as recorded by the learned Additional Sessions Judge himself that those witnesses were not declared hostile and, therefore, there was no question of contradicting those witnesses with their confessional statements.

3. In my view, the order passed by the learned Additional Sessions Judge is correct. It is well settled that a confessional statement under Section 164 of the Code of Criminal Procedure could be used for the purpose of corroboration as well as for the purpose of contradiction unlike a police statement recorded under Section 161 of the Code of Criminal Procedure which could be used only for the purpose of contradiction. To put in other words, a statement of witness under Section 164 of the Code of Criminal Procedure is not substantive evidence, but; is a former statement made before an Authority legally competent to investigate the fact. Such a statement can be used either for corroboration of the testimony of a witness under Section 157 or for contradiction thereof under Section 145 of the evidence Act.

4. The confessional statements could have been admitted into evidence and exhibited without the Magistrate being examined in the Court. In Kashmira Singh v. State of Madhya Pradesh, AIR 1952 SC 159 their lordships observed thus:--

"The prosecution were criticised for not calling the Magistrate who recorded the confession as a witness. We wish to endorse the remarks of their Lordships of the Privy Counsel in Nazir Ahmed v. King Emperor, AIR 1936 PC 253 (2) at p. 258, regarding the undesirability of such a practice. In our opinion, the Magistrate was rightly not called and it would have been improper and undesirable for the prosecution to have acted otherwise."

5. The reason why statement recorded under Section 164 is not substantive evidence is that the defense has no opportunity to cross-examine the witnesses whose statements have been recorded under Section 164, but the same can certainly be used for contradiction or corroboration of witnesses who made it. The correct use of the statement recorded under Section 164 is that it can be used by defense for the purpose of cross-examination of witnesses who made the said statements. It is always open to the defense to show that the statement so recorded was not correct or that it was contradictory to the statements made by the witnesses at a trial or that the witnesses rescind from their statements earlier recorded under Section 164. (See Ram Kishan Singh v. Harmit Kaur & Ors., AIR 1972 SC 468)

6. Before parting, I would like to clear one misconception of law as noticed by me in the ord