The main legal point established in the judgment is that statements recorded under Section 162 of the Criminal Procedure Code can only be used to contradict the witness and must be duly proved and used in the manner laid down in Section 145 of the Evidence Act. The court emphasized that unless there is a contradiction between the statement recorded under Section 162 and the statement made by the witness in the course of his deposition, the statement recorded under Section 162 cannot be used at all.

Burn, J.

1. The point, raised in this case is whether a statement, made by a witness to the Police in an investigation under Section criminal Procedure Code, can be filed, or exhibited, or in short, used, when the witness is under examination in an inquiry under Chap. XVIII of the Criminal! Procedure Code, in order to show that while giving evidence the witness has made assertions which he did not make when he was examined by the Police.

2. Statements recorded under Section 162, Criminal Procedure Code, can be used at a subsequent inquiry or trial for one purpose only, to contradict the witness. If they are to be used for this purpose the statements made under Section 162 must be duly proved, and used in the manner laid down in Section 145 of the Evidence Act. It follows of course that unless there is a contradiction between the statement recorded under Section 162 and the statement made by the witness in the course of his deposition, the statement recorded under Section 162 cannot be used at all. It is therefore obvious that; the question raised in this case must be answered in the negative, unless an omission from a statement under Section 162 can be said to be a contradiction of a statement made in the witness-box. Reduced to these terms the matter appears to me to be too simple to admit of; any judgment. Whether it is considered as a question of logic, or of language, "omission and "contradiction" never be identical, If a proposition is stated, any contradictory proposition must be a statement of some, kind, whether positive or negative. To "contradiet means to speak against" or in one word to "gainsay". It is absurd to say that you can contradict by keeping silence. Silence may be full of significance, but it is not "diction", and, therefore, it cannot be "contradiction".

3. It is clear, therefore, that a statement under Section 162, Criminal Procedure Code cannot be used during an inquiry or trial in order to show that a witness is making statements in the witness-box which he did not make to the Police.

4. The same conclusion follows from a consideration of Section 145 of the Evidence Act. If it is intended to contradict the witness by the writing, his attention must be called to those parts of the writing, which are to be used to contradict him. It would be in my opinion sheer misuse of words to say that you are contradicting a witness by the writing, when what you really want to do is to contradict him by pointing out omissions from the writing. I find myself in complete agreement with the learned Subordinate Judge of Ferozepore who observed that "a witness cannot be confronted with the unwritten record of an un-made statement" Mohinder Singh v. Emperor 135 Ind. Cas. 209 : A.I.R. 1932 Lah. 103 : Ind. Rul. (1932) Lah. 81 : 33 Cr. L.J. 97 : (1932) Cr. Cas. 123.

5. In the case cited it was held by Coldstream, J., that the view of the learned Sessions Judge was not correct. Reference was made to the judgment of Dalip Singh, J. in Hazara Singh v. Emperor 108 Ind. Cas. 167 : 9 Lah 389 : 29 Cr. L.J. 348 : A.I.R. 1928 Lab. 257 : 9 A.I. Cr. R. 559 but in neither of these cases was it [explained how an omission could amount to a contradiction. The instance given by Dalip Singh, J., was that of a witness who should state under Section 162, Criminal Procedure Code, that three persons were beating a man and should later allege that four persons were beating the same man. I would say with all respect that such statement would be in fact contradictory. It is impossible to state a casein which an omission amounts to a contradiction.

6. There is apparently no decided case in this High Court but I cannot see that there is any real difficulty in the matter. There is some apparent divergence of view in the Patna High Court. Mr. K.S. Jayarama Ayyar for the petitioner relies on the case of Iltaf Khan v. Emperor AIR1926Pat62 whereas the learned Public Prosecutor relies on the observations of Macpherson, J. in Badri Chowdhury v. Emperor AIR19