Ranawat, J.—This is a reference by the District Magistrate Udaipur. The facts leading to this reference are as follows. In a case State vs.Kesarsingh,Heeralal and Govindsingh Jume Khan was produced as a prosecution witness on the 8th April, 1953, in the court of the City Magistrate, Udaipur. The witness in his examination-in-chief stated that he did not remember anything and that his statement which had been recorded previously was made by him correctly. The public Prosecutor thereupon wanted to put the statement of the witness, which had been recorded under sec. 164 Cr.P.C., in the hands of the witness for refreshing his memory. Such a course was objected to by the other side, and the learned City Magistrate after hearing the arguments on both the sides on the point felt that such a use of a statement recorded under sec. 164 could not be permitted. The prosecution filed a revision application in the court of the District Magistrate, Udaipur, against the said order of the reference. The learned District Magistrate has observed that under sec. 159 of the Indian Evidence Act, the memory of the witness could be refreshed with reference to his previous statement and the order of the Magistrate should, therefore, be set aside, and he should be directed to permit the use of the statement recorded under sec. 164 Cr.P.C. for the purpose of refreshing the memory of the witness.

2. Sec. 159 of the Indian Evidence Act lays down that :—

"A witness may, while under examination, referred his memory by referring to any writing made by himself at the time of the transaction concerning which he is questioned, or to so soon afterwards that the court considers it likely that the transaction was at that time fresh in his memory.

The witness may also refer to any such writing made my any other person, and read by the witness within the time aforesaid if, when he read it, know it to be correct.

Whenever a witness may refresh his memory by reference to any document, he may, with the permission of the court, refer to a copy of such document.

Provided the court be satisfied that there is sufficient reason for the non-production of the original.

An expert may refresh his memory by reference to professional treatises," Sec. 160 which is also relevant for the question which is raised in this case lays down that:—

"A witness may also testify to facts mentioned in any such document as is mentioned in sec. 159, although he has no specific recollection of the facts themselves, if he is sure that the facts were correctly recorded in the document."

3. In his explanation the City Magistrate has confined his observation to a statement recorded under sec.162 Cr. P. C, and he has not said anything about the statement of the witness recorded under sec. 164 PC. The record of the case was examined in this Court and the statement of Jume Khan under sec. 164 Cr. P. C. could not be traced. It is, therefore, not clear whether the prosecution wanted to put a statement recorded under sec. 162 or under sec. 164 in the hands of the witness to enable him to refresh his memory. If the intention of the prosecution was to give a copy of the statement recorded under sec. 162 Cr.P.C. to the witnesses, such a course could not warranted by the provisions of sec. 162, Cr. Procedure Code, itself. The relevant portion of sec. 162 Cr.P.C. provides that:—

"No statement made by any person to a police officer in the course of an investigation under this Chapter shall, if reduced into writing, be signed by the person making it; nor shall any such statement or any record thereof, whether in a police diary or otherwise, or any part of such statement or record, be used for any purpose (save as hereinafter provided) at any inquiry or trial in respect of any offence under investigation at the time when such statement was made."

The only use which can be made of such statement is that of contradicting witnesses, It is, therefore clear that a statement recorded under sec. 162 Cr. P. C. cannot be made use of

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