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4. The present petition is filed challenging the impugned order dated 18.1.2024 passed by the trial Court and in the deposition of the witness/PW1 thereby allowing the Public Prosecutor to refresh the 28th August 2024 WPCR-146-2024-F.DOC memory of the witness by showing him statement recorded by the Investigating Agency under Section 161 of Cr.P.C.

5. Mr Amonkar appearing for the petitioner/accused would submit that PW1 was in the witness box who gave a statement under Section 161 of Cr.P.C. to the Investigating Officer during the investigation. When the examination in chief began, initially the witness disclosed that he was present on the date of the incident in the office and an official of the Anti Corruption Bureau visited his office along with staff. They were doing some formalities. However, he disclosed that due to passage of time he cannot recollect the details of the raid. At this stage learned Public Prosecutor sought permission of the Court to refresh the memory of the witness by showing his statement recorded under Section 161 of Cr.P.C. Though objections were raised by the learned counsel for the accused, the impugned order was passed thereby allowing the witness to refresh the memory from the witness box and that too while recording examination in chief, which is challenged in the present proceedings.

23. In the case of Simon (supra), the Division Bench of Kerala High Court was called upon to decide upon the same circumstances 28th August 2024 WPCR-146-2024-F.DOC which are found in the present matter. Observation in para 11 are relevant to decide the present revision which reads thus:-

"11. It seems that the learned Sessions Judge is of the view that the witness could be allowed to refresh his memory by reading the statement recorded by the police under Section 161 Cr. P.C. A witness could be permitted to refresh his memory only under Sec. 159 of the Indian Evidence Act. That also could be allowed only under restricted circumstances. S. 159 of the Evidence Act says that a witness may, while under examination, refresh his memory by referring to any writing made by himself at the time of the transaction concerning which he is questioned. The witness may also refer to any such writing made by any other person, and read by the witness within the time of the transaction or soon afterwards concerning the matter he is questioned. It is also necessary that the court must consider that it is likely that the transaction was at that time fresh in the memory of the witness. So, the memory could be refreshed with reference to some contemporaneous document prepared by the witness by himself or made by any other person which the witness had occasion to read. Generally, this right is being exercised by expert witnesses such as a doctor who give evidence touching the postmortem certificate or wound certificate prepared by him. A Commissioner deputed by the court can also refresh his memory 28th August 2024 WPCR-146-2024-F.DOC at the time of giving evidence by referring to the report contemporaneously prepared by him. But this special privilege given to the witnesses under S. 159 of the Evidence Act cannot be made use of by a witness in a criminal case to refresh his memory by referring to his earlier statement given to the police under S. 161 Cr. P.C. This is because Sec. 162 of the Code of Criminal Procedure specifically states that the statement recorded by the police officer under S. 161 could only be used for certain specific purposes. Proviso to Sec. 162 Cr. P.C. reads as follows:

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25. Mr Vaze heavily relied on the decision in the case of Suresh Purushottam Ashtankar, (supra) delivered by the Division Bench of this Court. However, said matter is admittedly in case of any appeal challenging judgment of conviction in Magistrate trial. While arguing the matter, it was pointed out to the Court that one of the witnesses admitted during cross examination that he was allowed to refresh his memory which is before stepping into the witness box. In that context and while referring to the decision of the Single Judge in the case of Sharad Namdeorao Shikbhate (supra) it was observed in paragraph 32 that such witness cannot be relied upon; however, refreshing memory with regard to Contemporaneous record is permissible.

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27. With great respect, with this Single statement, it cannot be construed that it is a ratio laid down by the Court with regard to refreshing the memory of all the witness in the presence of the Court and specifically when the witness is in the witness box for recording his examination in chief.

28. Refreshing memory of a witness and that too with permission of the Court is allowed only as per the provision of Section 159 of the Evidence Act and secondly under Section 145 of the Evidence Act for the purpose of contradiction. If the interpretation of the above decision is considered that each and every witness is entitled to refresh his memory, that too for recording examination in chief, would be clearly against the provision of section 162 of Cr.P.C. as well as section 145 of the Evidence Act.