( 1 ) THIS is a Criminal Reference by the Additional Sessions Judge of Muzaffarnagar with the recommendation that the order dated 26-6-1962 of the Magistrate be set aside and he be directed to furnish copies of the statements of witnesses recorded under Section 161 Cr. P. C. to the accused person.

( 2 ) CHAMANLAL Nagpal made a report with the police of district Saharanpur alleging that the applicant, Srimati Avinash Kaur had committed offences punishable under Sections 406 and 409, I. P. C. The offences were investigated by the police but no chargesheet was submitted. Thereafter Chamanlal Nagpal moved a criminal complaint before the Magistrate at Saharanpur which has since been transferred to Muzaffarnagar. The complaint is at present pending for hearing before Sri P. C. Misra, Magistrate, 1st Class, Muzaffarnagar.

( 3 ) SRIMATI Avinash Kaur wanted to utilise the statement recorded by the police under S. 161, Gr. P. C. for cross-examining the complainant and his witnesses and with that aim. in view moved an application for the summoning of the case diary pertaining to this csse. The case diary was not received on the date the criminal case was taken up. She naturally wanted adjournment of the cross-examination of witnesses till the case diary was received. There was an implied requirement that copies of statements recorded under Section 161, Cr. P. C. be furnished to her to enable her to cross-examine the complainant and his wit- nesses. An objection was raised by the complainant that no such copies could be furnished to the accused and the-trial was to proceed without summoning the case diary. The Magistrate has under the impugned order dated 26-6-1962 disallowed the request for adjournment on the ground that there was no provision under which copies of statements recorded under S. 161, Cr. P. C. were to be furnished to the accused

( 4 ) UNDER Section 161, Cr. P. C. a police officer Investigating an offence can examine orally any person supposed to be acquainted with the facts and circumstances of the case and it is necessary for him to reduce into writing the statement so made though he cannot in view of Section 162 (1), Cr. P. C. obtain the signature or thumb mark of that person below his statement. The record of such statement is maintained in the diary of proceedings as contemplated by Section 172, Cr. P. C. which is in the State of Uttar Pradesh called case diary. The case diary of the case under inquiry or trial before a criminal Court can, as laid down in Sub-section (2) of Section 172, be sent for by such Court and can be used not as evidence in the case but as aid to such inquiry or trial. The accused or his agent is, however, not entitled to call for such diary nor is he entitled to see it merely because It was referred to by the Court; but the provisions of Sections 145 and 161 of the Evidence Act are applicable, i. e. the accused can use the contents of the case diary for purposes of contradicting the police officer if he had used the case diary to refresh his memory, or the Court used it for the purposes of contradicting such police officer. Section 172 (2), Cr. P. C. thus places a bar on the summoning of the case-diary by the accused or his agent, but it does not debar the Court from sending for the case-diary, suo moto or on the request of the accused or his agent.

( 5 ) AS the statement of witnesses made before the investigating officer is recorded in the case diary, contents thereof amount to an earlier statement of the witness which can be used for contradicting that witness unless under some valid provision of law, such use is not permissible. Prohibition shall not be presumed and if no provision exists to the contrary, the statement recorded under Section 161, Cr. P. C shall be treated at par with any other earlier statement of the witness.

( 6 ) THE bar with regard to the use of the statement recorded under Section 161, Cr. P. C. is contained in Section 162 (1), Cr. P. C. It provides that