ORDER
P.K. Tripathy, J.
1. Criminal Misc. Case No. 3084 of 1998 has been filed with the prayer to set aside the order dated 12-5-1998 which was passed in rejecting the petition under Section 311 of the Criminal Procedure Code, 1973 (in short, ‘the Code’) filed by the petitioners to recall P.W. 7 Kedar Ch. Jena, A.S.I. of Police for cross-examination in S.T. Case No. 106 of 1997 of the Court of C.J.M. cum-Assistant Sessions Judge, Cuttack. Criminal Misc. Case No. 3085 of 1998 under Section 482 of the Code has been filed to set aside the other part of the aforesaid order dated 12-5-1998 in which petitioners prayer to recall witnesses and to call for the records of S.T. Case Nos. 509 of 1995 and 247 of 1995 was rejected.
2. Criminal Misc. Case No. 3084/98 relates to rejection of the petition dated 6-2-1998 (Annexure-1 in that Misc. case). Similarly, Criminal Misc. Case No. 3085/98 relates to rejection of the petition dated 18-12-1997.
3. It appears from the impugned common order dated 12-5-1998 that petition dated 10-12-97, filed by the petitioner, was rejected precisely on the grounds viz.,
(i) petitioners have not disclosed the purpose for which further cross-examination is necessary and on which aspect; and
(ii) steps taken by the petitioner to recall P.W. 7 for further cross-examination is belated though there is no justification for the same inasmuch as the sale P.W. 7 was examined as a witness in two previous S.T. Cases about six months before his examination in the present sessions case and he was examined, cross-examined, re-examined and further cross-examined, but the defence did not show any anxiety to confront any statement to him.
Petition dated 6-2-98 has also been rejected on the self same grounds, as noted above.
4. During the course of hearing, learned counsel for the petitioners argued that cross-examination of witness is necessary to confront them with their previous statements recorded under Section 162 of the Case in S.T. Case Nos. 589/95 and 247/95. Of course, it was debated and deliberated if statement of a witness recorded under Section 162 of the Code in another investigation can be used for the purpose of confronting contradiction in the present case. Learned counsel appearing for the petitioners advanced argument in its support whereas learned Addl. Govt. Advocate resisted the said contention.
5. Statutory law, on the point, remains confined to Sections 161 and 162 of the Code and Section 145, Indian Evidence Act, 1872 (in short Evidence Act). Chapter XII in the Code relates to ‘Information to the Police and their powers to Investigate’. Sections 161 and 162 of the Code appear in that Chapter. Section 161 provides for examination of persons during the course of investigation and reducing such statements into writing if the concerned Police Officer will think it necessary or proper to do so and in that event he is to make separate and true record of the statements of each of such persons whose statements are recorded. Section 162 provides that such statements, so recorded need not be signed and its use be restricted to the extent of permitting the defence to use it for the purpose of confronting for contradiction to a prosecution witness with the statement of that witness and also permitting prosecution to make use of the same in the aforesaid manner with due permission from the trial Court. If Section 162 of the Code is recorded it reads as hereunder :
(i) Statement made by any person to a police officer in the course of an investigation under Chapter XII; if reduced to writing, need not be signed by the person making it;
(ii) Such statements or part thereof or any record thereof or part thereof whether in a police diary or otherwise be not used for any purpose except at any inquiry or trial in the manner noted below and in respect of any offence under investigation at the time when such statement was made.
(iii) When any witness is called for by the prosecution in such inquiry or trial and if his statement has been reduced to writing in the manner provided in Section 161 of the Code, then;
(a) any part of that statement if duly proved may be used by the accused to contradict the witness in the manner provided by Section 145, Evidence Act;
(b) any part of that statement, if duly proved, may be used by the prosecution with permission of the court so as to contradict such witness in the manner provided in Section 154, Evidence Act; and
(c) when any part of such statement is used by the accused in the aforesaid manner, any part thereof may be used in the reexamination (obviously by the prosecution) only for the purpose of explaining any matter referred to in his cross-examination.
(iv) But the aforesaid restriction shall not apply to statements falling within the provisions of Sections 27 and 32(1) of the Evidence Act.
(v) Omission to state a fact or circumstance, in such recorded statement whether amounts to contradiction or not is a question of fact.
6. The above analogy of Section 162 of the Code makes it clear that use of a statement recorded under that section is restricted in the manner provided in that section when it relates to any inquiry or trial in respect of any offence under investigation at the time when such statement was made. Therefore, in the case of Khatri v. State of Bihar AIR 1981 SC 1068 : (1981 Cri LJ .597), Apex Court has propounded that the bar provided in Section 162 of the Code is not applicable to a petition considered under Article 32 and statement recorded under Section 162 of the Code can be used by the Court in the writ petition. In the case of Haji Ahmad Hussain v. State AIR 1960 All 623 : (1960 Cri LJ 1296), learned single Judge of Allahabad High Court has held that (at page 1297 of Cri LJ) :-
All that is barred is the use of the statement at an inquiry or trial in respect of the offence under investigation. The defamatory statement made by the applicant to the Deputy Superintendent cannot be used at any enquiry or trial in respect of the offence punishable under the Prevention of Corruption Act under investigation; its use in any other inquiry or trial in respect of any other offence is not barred. Therefore, it cannot be said that the defamatory statement would not be used in evidence against the applicant in his prosecution under Section 300, I.P.C.
In the case of Doman Mahton v. Surajdeo Prasad AIR 1970 Pat 95 : (1970 Cri LJ 350), a Division Bench of Patna High Court has held that the bar to confront a statement recorded under Section 162 of the Code is not applicable when such statement is confronted to a witness in another trial for the purpose of contradicting under Section 145 of the Act or to impeach the credibility of such witness under Section 135 of the Evidence Act.
7. Even if the petition of law is very clear relating to use of the statement under Section 162 of the Code, yet, on perusal of the impugned order, it is found that both the applications of the petitioners were rejected on other ground as already noted earlier.
8. Petitioners also during the course of hearing put emphasis on the provision under Section 311 of the Code and argued that learned trial Court completely ignoring the true implication of Section 311 rejected the applications filed by the petitioners to recall the witnesses for further cross-examination. In that context, he relies upon the decisions reported in (1988) 50 CLT 443 (Shagman Behera v. Maheswar Behera) (sic); 1991 Cri LJ 1521 : (AIR 1991 6C 1346) (Mohanlal Shamji Soni v. Union of India); (1994) 70 CLT 962 (Pradeep Kumar Agarwal v. State) and 1997 (2) OLR 75 (Harihar Singh v. State of Orissa). In the above cited decisions highlighting the principles behind recalling a witness for re-examination or for further cross-examination, it is propounded that Court is to consider whether such re-examination or further cross-examination of the witness is necessary in the interest of fair play and/or for a just decision in the case. If that be so, prayer to recall a witness for reexamination or further cross-examination should not be rejected on the ground of delay or on any other technical ground.
9. Keeping in view the above-stated settled principle of law relating to Section 311 of the Code and the requirement of law under Section 162 of the Code and the provisions of the Evidence Act, the fact as available in the present case is to be examined to find out correctness or otherwise in the impugned order.
10. It appears from the petition dated 10-12-97 and 6-2-98 filed by the petitioners that his petition is vague and unspecific as to which of the witness he wants to further cross-examine and with respect to which aspect in the case. A general statement made about other cases pending as counter-cases and examination of some of the witnesses as common witnesses in all the three sessions trial is not sufficient to clearly spell out the purpose for which petitioners wanted to recall the witnesses for further cross-examination. Under such circumstances, the reasoning given by the trial Court in rejecting the petitions filed by the petitioners cannot be faulted with. Accordingly, the impugned order being not found to be illegal or unjustifiable in any manner nor against the interest of justice is not found to be interfered with in exercise of the inherent power under Section 482 of the Code. Accordingly, both the applications are rejected and consequently the Criminal Misc. cases are dismissed.