The High Court quashed the trial court's order permitting a witness to refresh his memory using a statement recorded under Section 161 of the Code of Criminal Procedure (Cr.P.C.) during his examination-in-chief. The court highlighted that such statements could only be used for contradiction during cross-examination under Section 145 of the Indian Evidence Act and not to refresh memory during direct examination.

1. Background:
   The petitioner challenged an order dated 18.01.2024, passed by the trial court, which allowed the Public Prosecutor to refresh the memory of PW1 (the witness) by showing him a statement recorded by the Investigating Agency under Section 161 of Cr.P.C. during his examination-in-chief.

2. Petitioner's Contention:
   The petitioner's counsel, Mr. Amonkar, argued that under Sections 145 and 162 of the Cr.P.C., a statement recorded under Section 161 could only be used to contradict the witness during cross-examination. He also contended that Section 159 of the Indian Evidence Act does not apply to such cases since the scope of the section is different and does not permit refreshing memory during examination-in-chief.

3. Respondent's Contention:
   The Additional Public Prosecutor, Mr. Vaze, argued that there was no bar on refreshing a witness's memory, as Section 159 of the Evidence Act permits it. He further cited provisions under Section 172(2) of the Cr.P.C., which allows the Investigating Officer to refresh their memory from the case diary.

4. Court's Analysis:
   The court reviewed the legal provisions under Sections 159, 145, and 162 of the Indian Evidence Act and Cr.P.C., respectively. It referred to several precedents, including Simon v. State of Kerala and Superintendent and Remembrancer of Legal Affairs, Bengal v. Zahiruddin, which support the contention that statements under Section 161 can only be used for contradiction during cross-examination.

5. Court's Ruling:
   The court concluded that allowing the Public Prosecutor to refresh the witness's memory using the statement under Section 161 during examination-in-chief was contrary to the provisions of law. It quashed the trial court's order and emphasized that refreshing a witness's memory should adhere strictly to the provisions mentioned in the Evidence Act.

Acts and Sections Discussed:

• Code of Criminal Procedure (Cr.P.C.):

  • Section 161: Examination of witnesses by police.
  • Section 162: Use of statements in evidence.
  • Section 172: Diary of proceedings in investigation.

• Indian Evidence Act, 1872:

  • Section 145: Cross-examination as to previous statements in writing.
  • Section 159: Refreshing memory.

Ratio Decidendi:

The court clarified that statements recorded under Section 161 of the Cr.P.C. are not admissible for refreshing a witness's memory during examination-in-chief. Such statements are only permissible for use in contradiction during cross-examination under Section 145 of the Indian Evidence Act. Allowing otherwise would violate Section 162 of the Cr.P.C., which expressly restricts the use of such statements.