Statements recorded by the police during the course of an investigation under S. 202 of the Cr. P. C. 1898 are not covered by S. 162 of the Code and can be used for cross-examination, contradiction, corroboration and refreshing memory under the Evidence Act.

BHATTACHARJEE, J.

( 1 ) THE learned Judicial Magistrate refused to allow the accused to contradict the prosecution witnesses with reference to their previous statements recorded by the police on the ground that such statements were not recorded by the police in the course of any investigation under the provisions of Chap. XIV of the Cr. P. C. 1898, and, therefore, could not attract the provisions of S. 162 (1) of the Code, under the proviso whereof the accused is entitled to contradict the prosecution witnesses with reference to their previous statements only when those are recorded by the, police in the course of any investigation under Chap. XIV of the Code. In Sikkim, Cr. P. C. of 1973 has not yet been extended and we are still governed by the earlier Code of 1898. But it may be noted that the provisions of S. 162 of the new Code of 1973 are almost verbatim reproduction of the provisions of S. 162 of the Code of 1898, save for the new Explanation added to the section in the Code of 1973; the new Explanation, however, has not introduced any new principle, but has endeavoured to set at rest the sharp cleavage of opinion among the different High Courts, sought to be sealed by the Supreme Court in Tahsildar Singh v. State of Uttar Pradesh AIR 1959 SC 1012, followed in the Dahyabhai v. State of Gujarat AIR 1964 SC 1563 , as to when an omission to state a fact or circumstance in the statements recorded may also amount to contradiction.

( 2 ) THE learned Judicial Magistrate having denied to the accused the right to contradict the prosecution witnesses with reference to their previous statements recorded by the police, the accused moved the Court of Session in revision and the learned Sessions Judge has, under S. 438 of the Code, reported the case for orders of this Court as he was of the opinion that if, as held by the Judicial Magistrate, the previous statements were not recorded in the course of any investigation within the meaning of S. 162, then the statements would all the more be available to the accused under S. 145, Evidence Act to contradict the makers of those statements when deposing as witnesses. Having heard the learned counsel for the petitioners and the respondents and also the learned Government Advocate and having gone through the records ourselves, we have no doubt that the revision must be accepted and the order of the learned Judicial Magistrate must be set aside.

( 3 ) BOTH the Courts have accepted, and so have all the learned counsel appearing before us, that the investigation by the police in this case was not ordered under S. 156 (3), whereunder the Magistrate empowered under S. 190 can proceed to order investigation before taking cognizance of the case, but was ordered under S. 202 of the Code, whereunder a Magistrate other than a Magistrate of the third class may, before issuing process and in order to decide as to whether process should be issued, may direct an investigation to be made by any police officer for the purpose of ascertaining the truth or falsehood of the complaint. Such an investigation under S. 202, which occurs in Chap. XVI, is obviously not an investigation within the meaning of S. 162 which expressly refers and confines itself to "investigation under this Chapter", meaning thereby the Chap. XIV wherein S. 162 occurs. It is, therefore, obvious that the statements recorded in the course of such an investigation, even though recorded by a police officer, would not come within the purview of S. 162. The expression "investigation under this Chapter" in S. 162 would obviously exclude all investigations under any provision in any other Chapter of the Code and would accordingly exclude the investigation under S. 202 in Chap. XVI or investigation under S. 196-B in Chap. XV and, therefore, any statement, whether recorded by a police officer or not, in any such investigation would not be a statement to which the provisions of S. 162 would apply. Though no citation should be necessary for so obviou