In State of Kerala v. Babu, (1999) 4 SCC 621 the Apex Court was confronted with the question as to whether the statement of a witness recorded under S.161 of Cr.P.C. in one particular crime could be used against that witness in any other trial enquiry or proceedings by the accused.
Statement recorded by an investigating officer in any case which was under investigation being a statement made under S. 161 of the Code, the same can be used for the limited purpose provided under S.162 of the Code read with S.145 of the Evidence Act.
There can be no quarrel with this approach in regard to the use of the previous statements of a witness made in the course of another investigation being used in the course of another criminal trial.
This is because the very object of enactment of S.161 of the Code and S.145 of the Evidence Act is to create a right in the accused to make use of the previous statements of the witnesses for the purpose of contradiction and for impeaching the merit of the witness.
This right has not been taken away by S.172 of the Code and there is no prohibition in regard to this right of the accused either under the Code or under the Evidence Act.
If that be so and if the court comes to the conclusion that the production of document is necessary or desirable then, the court is entitled to summon the case diary of another case under S.91 of the Code de hors the provisions of S.172 of the Code for the purpose of using the statements made in the said diary, for contradicting a witness.
When a case diary is summoned under S.91(1) of the Code then the restrictions imposed under Sub-s.(1) and (3) of S.172 would not apply to the use of such case diary but while using a previous statement recorded in the said diary, the court should bear in mind the restrictions imposed under S.162 of the Code and S.145 of the Evidence Act because what is sought to be used from the case diary so produced, are the previous statements recorded under S.161 of the Code.
Having regard to the above binding precedents there cannot be any doubt that S.162 of the Code does not prohibit the use of the 161 statement of any witness in any other proceeding other than the inquiry or trial in respect of the offence for which the investigation was conducted.
However the Apex Court has cautioned that the court should bear in mind the restrictions imposed under S.162 of the Code and S.145 of the Evidence Act because what is sought to be used from the case diary so produced, are the previous statements recorded under S.161 of the Code.