The first contention raised by Mr. Sl1anna is that the Sessions Judge did not comply with the provisions of s. 288 of the Code of Criminal Procedure inasmuch as he did 'IOI pass any order transferring the earlier statement to the record of the Sessions trial. We have not been able to find in the original record c{ the case, which was brought to our notice, any order specifying the transfer of the earlier deposition to the record of the Sessions Court under s. 288. It appears, however, that the practice of this Court is to contradict a witness with the earlier statement and parts there of, after declaring him hostile and then to use the record of the earlier statement as substantive evidence. It may !>.: stated that it is highly desirable that the court should, before the transfer of the earlier statement to the record of the Sessions ca.ie under s. 288, indicate in a brief order why the earlier deposition was being transferred to the record of the trial. This will make it quite clear to the accused that the earlier statement is likely to be used as substantive evidence against him. If the matter had restecl with the use of the earlier statement withou: this notice to the accused, we would have found it difficult to rely upon the earlier deposition. We find, however, that Periyasamy was questioned with reference to the statement of Pappayee made before the Committing Magistrate which, the Judge informed him, was marked under s. 288 of the Code of Criminal Procedure, and he was asked what he had to say about it. Therefore, although the technical requirement of the section, namely, that an order should be passed to indicate that the statement is transferred so as to be read as substantive evidence, was not complied with, there does not appear to be any substantial departure from the requirements ofthdaw. There is also no likelihood of any prejudice io Periyasamy since hi' was informed, while he was being examined that the statement was being used u:ider s. 288, Criminal Procedure Code, and was invited to say what he wished to say in defence. We arc, therefore, of the opinion that the High Court and the court below were right in using the statement as substantive evidence which undoubtedly the Code of Criminal Procedure does allow.
