1962 (2) TMI 133

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....e and was hit by the provisions of Section 162 of the Code of Criminal Procedure. In support of his contention, he relied upon the decision of a Division Bench of this Court in Naginlal Nandlal v. State of Gujarat, 1961-2 Guj LR 664. Mr. Barot in particular relied upon a passage in that decision occurring at page 673 of the report where it has been stated :     "For similar reasons, a Panchnama made by the police cannot be regarded as a statement made by one Panch witness to another. It can be regarded as a statement made by the Panch witness to the police officer and if so, it would be-hit by Section 162 Cri. Pro. Code. If the Panchnama was not made during the course of the investigation, then it would not be hit by....

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....p;  "A panchnama is merely a record of what a panch sees. The only use to which it can property be put is that when the panch goes into the witness box and swears to what he saw, the panchnama can be used as a contemporary record to refresh his memory." As has been held in several cases. Section 157 of the Evidence Act is controlled by Section 162 of the Code of Criminal Procedure and therefore if a statement, though falling under Section 157 of the Evidence Act, were also to fall under Section 162 of the Code, it would be Section 162 of the Code that would prevail and such a statement would be inadmissible. Reading Section 157 of the Evidence Act and Section 162 of the Code of Criminal Procedure together, it is clear that the word ....

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.... if it fulfills the two conditions laid down in Section 162 of the Code, it becomes inadmissible thereunder, except for the limited purpose therein stated. The important words in Section 162 of the Code are "No statement made by any person to a police officer". Therefore the statement must be one to a police officer and unless it is to a police officer, it does not fall within the mischief of Section 162 of the Code. Therefore it is necessary that the statement in question must have the element of communication to a police officer. If a Panchnama is merely a record of facts which took place in the presence of panchas and of what the Panchas saw and heard, as observed in 43 Bom LR 163 : (AIR 1941 Bom 149), but is not a record of a statement ....