Holmwood, J.:— This was a rule calling upon the Magistrate of Dacca to show cause why the conviction and sentence of the accused 1 and 2 under sec. 148 read with sec. 114, I.P.C, and of the other accused under sec. 148 should not be set aside, or why such other order should not be passed as to this Court may seem proper.

The facts found in the lower Courts were that accused were members of an unlawful assembly with the common object of entering with force and causing mischief and using criminal force to the shop-keepers and thereby causing damage to the Bazar of Bhuba Ranjan Babu.

The accused 3, 4 and 5 were found to have gone up into the Bazar and committed rioting armed with deadly weapons. The accused 1 and 2 were found to have stood below the Bazar and encouraged and directed such rioting. The first question raised before us was whether a conviction under sec. 148 read with sec. 114 could lie against these persons. No doubt if they formed members of the unlawful assembly in which force was used in pursuance of the common object they could be convicted of rioting and of abetment of any other offence which might be committed by the mob under their orders or instigation in prosecution of the common object, but could they, having regard to the provisions of sec. 148 which confine the offence therein rendered punishable to persons who not being armed with a deadly weapon, be convicted by implication under sec. 114 with being present when such an offence was committed and being liable to be punished as abettors if absent? The question was not argued before us by learned Counsel for the accused after the rule came on for hearing though it was made much of in obtaining the rule. We do not think that this somewhat difficult question really arises in this case inasmuch as the two accused in question have been sentenced to pay a fine of Rs. 300 each only, a punishment which it was competent to the lower Courts to inflict under sec. 147.

Had the question got to be answered it would seem to depend upon the circumstance whether the accused actually instigated the persons armed with deadly weapons to not with those weapons.

We can see no reason why a not should not be abetted as well as any other crime. The only difficulty arises from the presence of the accused at the not which renders them liable under sec. 147 in the first instance if they gave orders to the mob and thereby joined in the common object of the unlawful assembly.

The main ground that was argued before us on behalf of the Petitioners was, however, whether the accused had not been seriously prejudiced by not being allowed access to the Police diaries for the purpose of proving certain statements alleged to have been made to the Police inconsistent with their statements in Court. That question we have felt it our duty to settle by a careful perusal of those diaries in comparison with the depositions in Court and the result of our investigation will appear subsequently.

But the question is one of great importance in regard to the practice in the mofussil in dealing with the diaries and we think it our duty to deal with this matter at some length in order to clear up a misconception which appears to exist as to the effect of the law as laid down in sec. 161, Cr. P. Code, and the sections following. It appears to have become the practice for Police-officers in the mofussil to hold a regular investigation of a quasi judicial character in the presence of the accused and their agents.

This does not seem to be contemplated by the law which lays down that the Police-officer may examine orally any person supposed to be acquainted with the facts and circumstances of the case.

Such statements may be taken down in writing under the provisions of sec. 162 but shall not be signed by the person making them, nor shall such writing ??? be used in evidence; provided that when ??? any wit less is called for the prosecution ??? whose statement has been taken down in writing the Court shall, on the request of the accused, refer to such writing and may then, if the Court thinks it expedient in the Interest of justice, direct that the accused be furnished with a copy thereof would such statement may be used to impeach the credit of such witness in manner provided by the Indian Evidence Act. There is another diary kept under sec. 172 and generally known as the special diary in which the Police-officer is required of enter his proceedings day by day and this does not, in the list of matters of be entered therein, appear to allow any oral statement of witness to be recorded. It is strictly privileged and may only be used by the Court, not as evidence in the case, but to aid it in the enquiry or trial, neither the accused nor their agents shall be entitled to call for such diaries nor shall they be entitled to see merely because they are referred to by the Court; but if they are used by the Police-officer who made them to refresh his memory, or if the Court uses them for the purported of contradicting such Police-officer, the provisions of certain sections of the Indian Evidence Act shall apply. Those sections are sec. 161 which provides that such writing must be produced and shown to the adverse party who may cross-examine the witness on it, or sec. 145 which provides that a witness may be cross-examined as to previous statements mace by him in writing, or reduced into writing without such writing being shown to him or being proved; but if it is intended to contradict him by ??? writing, his attention must before ??? writing can be proved be called to ??? parts of it which are to be used or the purpose of contradicting him. Now by a curious and rather perverted ingenuity it became the practice of the Police-officers in the mofussil to incorporate oral statements made to them by witnesses in this special diary under sec. 172 in the belief that by so doing those statements could be kept from the knowledge of the accused.

In a series of decisions which are too well-known to require reference it was held by this Court that such statements whether recorded in a diary under sec. 172 or not, fell under the provisions of sec. 162 and were liable to be produced under the conditions laid down in that section. One would have imagined that the effect of these rulings would have been to put an end to the useless and irregular practice of entering any statements of witnesses in the diary under sec. 172 at all, and even now we think that an executive order giving effect to the law would have a salutary effect.

But what we wish to point out is that such statements even though entered in the diary under sec. 172 are admissible under the provision of sec. 162, and of that section only and the provisos as to the cross-examination of the Police-officer under secs. 161 and 145 which refer to his own statements do not apply to these statements of witnesses. The proper procedure is for the accused at the time the witness whose statement is be recorded appears before the Court to ask the Court to refer to such writing and if necessary furnish the accused with copies.

This is a practice it is not difficult to carry out.

It only requires a little adjustment of the time of the Court in cases where the diaries do not happen to be in Court or require translation. A strict adherence to the practice laid down in the Code is of the greatest benefit to all parties concerned and is the only way of avoiding friction. The result would be that statements really necessary to the accused's defence would rarely be kept out of the record and no question of prejudice would arise subsequently.

It appears to us that this is really the only way of securing the use of these statements. It was argued by learned Counsel perfectly correctly that under sec. 155 of the Evidence Act, cl. (3), the credit of a witness may be impeached by proof of former statements inconsistent with any part of his evidence which is liable to be contradicted and that it is therefore open to the accused's pleader to ask the Police-officer whether the witness made certain statements to him in the same way as it is open to him to ask anybody else who may have heard the statements made. This is so, but it is of little use if as in this case the Police-officer does not remember what was said and declines to refresh his memory from his diary. It has been laid down In the matter of the petition of Kali Churn Chunari(1), that “there is no authority for saying that a witness can be compelled to refresh his memory from any document unless the document is either in the possession of the party who desires to put it to the witness or is at least such as he can insist on having produced.” In another case reported in the same volume, In the matter of Jhubboo Mahon(2), it was further observed “that the Sessions Judge was not bound to compel the witness to look at the so-called diary in order to refresh his memory: and that it was wholly within his discretion whether he should do so or not.”

This ruling of course only applies to the diary under sec. 172 where the Police-officer can refresh his memory as to transactions of his own from day to day and as to circumstances brought to light in the course of his investigation.

Statements made by witnesses though entered in that diary are, as we have already remarked, only admissible under sec. 162, Criminal Procedure Code, and may not be used in evidence otherwise. It is, therefore, very doubtful whether a Police-officer could refresh his memory as to such statements unless the writing is already in and had been put to the witness who is alleged to have made the statement.

And the wisdom of such a provision is obvious when we consider that such statements are made without the sanction of an oath, without cross-examination and as a rule in secret. It would be quite unfair to accept the Police-officer's perfunctory recording of his diary as proof of the statement when he could not remember what had been said.

Times out of number witnesses duly cross-examined under sec. 162 on such statements succeed in showing from circumstances and dates which are clear on the face of the record that they could not possibly have made the statements attributed to them by the Police-office ??? The law has therefore laid down the ??? such statements shall not be used ??? evidence except in cross-examining ??? witness who made them with the leave ??? of the Court in the first instance. Of course having been so properly brought in they can subsequently be proved by the Police-officer under the provisions of the Evidence Act expressly referred to in sec. 162 if the witness denies making them. But this does not authorise their use for the first time for the purpose of refreshing the Police-officer's memory.

In the case before us the Court was not moved under sec. 162 when the first prosecution witness whom it was subsequently desired by the defence to test by reference to his statement recorded in the diaries appeared in the box.

After the prosecution witnesses had all been examined the defence moved the Court to examine the Sub-Inspector as a Court witness, and on this being refused they applied to the Court to summon the Sub-Inspector to appear with his diary as a witness for the defence this application was obviously under sec. 172 and the diary could only be used by the Sub-Inspector for refreshing his memory on his own proceedings and on circumstance which came to his knowledge during the course of his investigation, for they could be used by the Court for the purpose of contradicting the Sub-Inspector as to any of his own statements. They could not in our opinion be used for the purpose of proving statements made by witnesses to the Sub-Inspector under sec. 161. Even at that late stage of the case if the Magistrate on perusing the diaries found that it ??? ??? expedient in the interests of justice ??? use of such statements to ??? the credit of the witnesses, he ??? no doubt have directed the recall ??? such witnesses, furnished the accused ??? the copies of the statements and ??? further cross-examination, but ??? his would be a most unusual practice ??? highly inconvenient and nothing could ??? justify it but the clearest conviction in ??? the mind of the Magistrate that a ??? miscarriage of justice would otherwise result. The learned Sessions Judge on appeal rightly held that it would have been a wise discretion on the part of the Magistrate to have at least perused the diaries carefully himself before declining to take any action. He therefore supplied the omission of the lower Court by perusing the diaries himself and came to the conclusion that the diaries were bond fide diaries under sec. 172 and not under sec. 161 and that their contents satisfied him that the Magistrate might well have refused to order the Sub-Inspector to consult the diaries.

He bases this finding however not on the true reason that there was nothing in the diaries that could materially help the accused or that the statements were not admissible in evidence except under the provisions of sec. 162, but on the above erroneous finding that there was nothing in the diaries that does not properly fall under sec. 172 and that many of the question asked to the Sub-Inspector were improper.

We do not quite understand what was moving in the mind of the learned Sessions Judge in coming to these findings. To begin with, there are clear Statements of witnesses incorporated in the diary under sec. 172 which certainly bring them under the provisions of sec. 161, and, secondly, the impropriety of any questions which may have been asked to the Sub-Inspector could not possibly have any bearing on those statements. If they were admissible, that is, if the learned Judge thought that it was expedient in the ends of justice that the prosecution witnesses should be recalled and the statements put to them no subsequent questions put to the Sub-Inspector for the purpose of eliciting what those statements were could be rightly called improper. But as this had not been done any question to the Sub-Inspector as to what those statements were was inadmissible and the learned Judge had only to consider whether there was any such necessity for proving these statements in the interests of the accused as would justify him in ordering a remand for the purpose of recalling the prosecution witnesses and putting those statements to them.

This is also the only question that we have to decide on this rule and we have therefore carefully perused the statements contained in the diaries and compared them with the recorded evidence of each of the six witnesses in respect of whom learned Counsel argued that there should have been a remand. Those six witnesses are the Chowkidar Jamini Kanta Dhupi, the Panchayet, Kali Kumar Bose, the younger shop-keeper Sudhamna Shaha, the two Constables, Ram Asis Misser and Haris Chandra Dey, and a collateral witness Chandi Charan Kaibarta, who did not see the actual occurrence, The first information of Banga Chander Gope is also referred to as being utterly discrepant with the story now told for the prosecution.

That document was duly proved and placed 011 the record of the Court of first instance so that there is no question of prejudice as to its non-production. We find that Bangachi or Bocha as he is also called, named all the present accused and several others. The first information is so recorded that the beating of Gobinda and Sudhamna is put first and the breaking into their houses which all the other evidence shows was preliminary to the beating last. This is in itself inconsistent and improbable and is obviously either due to the carelessness of the Police or to the importance which the hurried informant placed on the various incidents. He describes the assault very vividly and was evidently most impressed by that. He candidly admits that Ram Asis Constable came up at the end and the accused then ran away. In his examination in Court he deposes to exactly the same facts but restores them to their correct and logical order. There is no such discrepancy as would justify us in throwing out his evidence.

The principal witnesses in the case are, besides this man, the Chowkidar, the Panchayet and the two shop-keepers. Of these the elder shop-keeper Gobinda is not impugned in respect of his statements before the Police. Apparently because he did not name any one in Court. But his evidence is clear as to the actual occurrence. The Chowkidar's evidence is entirely corroborated by his statement before the Police. He identifies in Court the same persons as he named to the Police and names in addition 3 persons who were never in ??? custody and not on their trial. The ??? only shows what experience fully ??? out that the Police do not ??? take the trouble to record a number names of persons who are not before ??? them. The practice of the Court is the ??? same and has sometimes led to difficulties in supplementary trials.

The Panchayet and Daffadar are clubbed together in the diary and are alleged to have merely stated that they witnessed the occurrence, recognised Hara Prosanna Chatterjee and will be able to identify others when seen. In Court, as might be expected, they gave a full and detailed account of the occurrernce. It is clear that such a general statement of two persons jumbled together could not be used with any effect in cross-examination to shake their credit, and curiously enough we are only asked to use that of the Panchayet.

The shop-keeper Sudhamna disappeared after being wounded in the occurrence and was not examined by the Police till the 13th March. He told them that he witnessed the occurrence but did not know the names of any of the accused. In Court; he calls the accused generally Sirdars and names no one until he reaches the time when he ran away, when he says: “One Shujaat Ali struck me with a lathi on the left arm.” He does not say or Imply that he knew him before. Finally he says that while the rioters were retiring he had leisure to identify them from a safe distance and names the accused in Court adding that “these two” (that is Sirada Chatterjee and Dad in Gazi) were standing below and pointing out all the accused in the dock.

If he knew these men before and knew ??? their names when he deposed to the Police ??? it is the Police who are guilty ??? of suppression since these men were ??? named immediately after the occurrence ??? by the informant Bocha and by the ??? Chowkidar.

The principal attack of the defence is made on the statements of the two Constables Ram Asis Misser and Haris Chuudra De, who admittedly arrived when the occurrence was just over. To the Police-officer they give a very clear and candid story stating what they saw and what they heard. Unfortunately in Court either through foolhardiness, or that curious accession of memory which makes people believe they have seen all they have heard as well, in a matter where they were really partial eye-witnesses and have discussed the matter with other eye witnesses, they state all the same matters as actually seen by them without making any distinction. Of course this discounts the value of their evidence, but the Police diary corroborates them as to what they actually did see and these are events of great importance distinctly leading to the conclusion that the accused were the persons who committed the riot.

The last person attacked is Chandi Churn Kaibarta, a villager, who told the Police that lie ran away as soon as he heard the shouts of the Sirdars. He tells the same story in Court with added details of how he came back after all was over and saw what mischief had been done in the fish Bazar; then, at the very end of his deposition in chief, he undertakes to say that he saw the five accused in the dock as the mob approached. He adds that he saw Dadan Gazi and Sarada below in the Bazar to the west. This, of itself, read in the light of his previous statement in Court as to his running away shows that his identification was practically worthless and there was no need to bring up the Police papers to clench the point.

There were numerous other witnesses who were tendered for cross-examination and declined and the principal amlah of the owners of the fish market who arrived on the scene immediately after the occurrence states what was at once reported to him by the witnesses. This was objected to in the lower Court and is not very material, but it has not been made the subject of any comment before us and the evidence is technically admissible under sec. 157, if it had been necessary to corroborate the witnesses. In this case we do not think it was at all necessary, and were the matter before us on the original record we should exclude it.

On the whole evidence, we think, there is nothing in the Police papers to justify the rejection of the depositions of the witnesses in Court and that the perusal of it by the learned Sessions Judge and his findings thereon though not happily worded are sufficient for the adjudication of the points, supplemented as it has been by our own detailed examination of the evidence and the Police papers. We do not think we should interfere with either the convictions or sentences. The actual assailants in a very had not where wanton mischief was caused to a wholesome and necessary article of popular diet and to the shops of peaceful traders, the shop-keepers themselves being beaten and ill-treated, have been sentenced to only 4 months rigorous imprisonment and the two men who gave orders from below have been fined Rs. 300 each.

We do not think these sentences are too severe. We accordingly discharge the rule and direct that the prisoners who have been admitted to bail do surrender to the Magistrate and serve out the rest of their sentences and that the fine on Dadan Gazi and Sarada Chatterjee, if not already paid, be levied according to law.

N.G

Rule discharged.