| SooperKanoon Citation | sooperkanoon.com/1235608 |
| Court | Karnataka High Court |
| Decided On | Sep-13-2024 |
| Case Number | CRL.P 7330/2024 |
| Judge | M.NAGAPRASANNA |
| Appellant | Dr. Shivamurthymurugha Sharanaru |
| Respondent | State Of Karnataka |
1 R Reserved on :
07. 08.2024 Pronounced on :
13. 09.2024 IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE13H DAY OF SEPTEMBER, 2024 BEFORE THE HON'BLE MR. JUSTICE M. NAGAPRASANNA CRIMINAL PETITION No.7330 OF2024BETWEEN: DR. SHIVAMURTHY MURUGHA SHARANARU S/O LATE GURUMURTHY AGED ABOUT66YEARS PEETADHYAKSHARU, MURUGHA RAJENDRA BRUHANMUT CHITRADURGA KARNATAKA - 577 502 (IN JUDICIAL CUSTODY) PERMANENT R/O GUDABANULU VILLAGE CHITRADURGA DISTRICT. ... PETITIONER (BY SRI C.V.NAGESH, SR. ADVOCATE FOR SRI K.B.K.SWAMY, ADVOCATE) AND:
1. . STATE OF KARNATAKA BY CHITRADURGA RURAL POLICE STATION CHITRADURGA - 577 502 REPRESENTED BY STATE PUBLIC PROSECUTOR2HIGH COURT OF KARNATAKA BENGALURU - 560 001. 2 . CHANDRAKUMAR C., S/O CHAJJEGOWDA AGED ABOUT42YEARS LEGAL CUM PROBATION OFFICER DISTRICT CHILD PROTECTION UNIT NO.CA-15-17, ANJANADRI MAIN ROAD4H STAGE, 2ND BLOCK, VIJAYANAGARA MYSURU - 560 032. ... RESPONDENTS (BY SRI B.N.JAGADEESHA, ADDL. SPP) THIS CRIMINAL PETITION IS FILED UNDER SECTION482OF CR.P.C., PRAYING TO REDACT / EXPUNGE THE PORTION OF THE DEPOSITION OF PW.1 RECORDED ON0107.2024 VIDE ANNEXURE- C, IN SPL.C.(POCSO) NO.181/2022 (CR.NO.387/2022), PENDING TRIAL FOR THE CHARGES U/S3762)(n), 376(3), 504 OF IPC AND SEC. 5(L) AND6OF POCSO ACT, PENDING ON THE FILE OF HON’BLE II ADDL. DIST. AND SESSIONS JUDGE, AT CHITRADURGA, REGISTERED BY CHITRADURGA RURAL POLICE STATION, CHITRADURGA. THIS CRIMINAL PETITION HAVING BEEN HEARD AND RESERVED FOR
ORDERS ON0708.2024, COMING ON FOR PRONOUNCEMENT THIS DAY, THE COURT MADE THE FOLLOWING:- 3 CORAM: THE HON'BLE MR JUSTICE M.NAGAPRASANNA CAV
ORDERThe petitioner/accused No.1 is before this Court seeking a strange prayer of expunging/redacting a portion of the deposition of PW-1 recorded on 01-07-2024 in Special Case (POCSO) No.181 of 2022 pending before the II Additional District and Sessions Judge, Chitradurga.
2. Facts in brief, necessary for introduction to the case are: A crime comes to be registered in Crime No.387 of 2022 for offences punishable under Section 376(2)(n), 376(3), 149 of the IPC and under Sections 17, 5(L), and 6 of the Protection of Children from Sexual Offences Act, 2012 (‘POCSO Act’ for short). On completion of investigation the police file a charge sheet on 25-10- 2022 for offences punishable under Sections 376(2)(n), 376(DA), 376(3), 201, 202, 506 r/w 34 and 37 of the IPC, Sections 17, 5(L), and 6 of the Protection of Children from Sexual Offences Act, 2012 (‘POCSO Act’ for short), Sections 3(f) and 7 of the Religious Institution Prevention of Misuse Act, 1988, Section 75 of the 4 Juvenile Justice (Care and Protection of Children) Act, 2015 and Section 3(1)(w)(i)(ii), 3(2)(v)(v-a) of the SC/ST Act, 1989. On 31-05-2024 the concerned Court frames charges in accordance with the order passed by this Court. The facts anterior to the impugned proceedings need not be narrated as they are not relevant for consideration of the issue in the lis. On 10-06-2024 the concerned Court examines CW-2 as PW-1. On 20-06-2024 the concerned Court hears on marking of statement of PW-1 under Section 164 Cr.P.C. On 21-06-2024 the concerned Court passes an order that statements recorded under Section 164(5) of the Cr.P.C. cannot be marked in examination-in-chief of the witnesses as it can only be used for contradiction or corroboration at the time of cross- examination. The examination continued. On 01-07-2024 it appears that the witness says about what she has spoken before the Magistrate while rendering the statement under Section 164(5) of the Cr.P.C. Contending that it is indirectly marking the statement rendered under Section 164 of the Cr.P.C., the petitioner/accused No.1 is again at the doors of this Court. 5
3. Heard Sri C.V.Nagesh, learned senior counsel appearing for the petitioner and Sri B.N. Jagadeesha, learned Special Public Prosecutor appearing for the respondents.
4. The learned senior counsel would vehemently contend that marking of a statement rendered by the witness under Section 164 is impermissible in law. He would contend that what cannot be done directly cannot be permitted to be done indirectly by even questioning the witness/PW-1 regarding the statement that was rendered under Section 164(5) of the Cr.P.C. This procedure will result in failure of justice and therefore the subject prayer is sought. He would place reliance upon certain judgments rendered by the Apex Court, this Court and other High Court which will all bear consideration qua their relevance in the course of the order.
5. Per contra, the learned Additional State Public Prosecutor would contend that marking of Section 164 statement is not barred in law. The concerned Court has passed an order that Section 164 statement cannot be marked. That would not mean the contents of Section 164 statement cannot be used in the cross-examination for 6 contradiction or corroboration. He would contend that it is only a ruse to drag on the proceedings. He would seek dismissal of the petition in the light of the Apex court directing conclusion of trial as expeditiously as possible.
6. I have given my anxious consideration to the submissions made by the respective learned counsel and have perused the material on record.
7. The issue that is now brought before the Court lies in a narrow compass. The issue is whether the evidence that is recorded on 1-07-2024 is in tune or contrary to law. When the statement under Section 164(5) of the Cr.P.C., of PW-1/CW-2 was sought to be recorded it was objected to by the defence. The objection led to the concerned Court passing an order. The order reads as follows: “R E A S O N S6 POINT No.1:-Section 164(5) of Cr.P.C reads as under:- "Any statement (other than a confession) made under Sub-Section (1) shall be recorded in such manner hereinafter provided for the recording of evidence as is, in the opinion of the Magistrate, best fitted to the circumstances of the case; and the Magistrate shall have power to 7 administer oath to the person whose statement is so recorded.
7. Sub Section(1) reads as under:- "Any Metropolitan Magistrate or Judicial Magistrate may, whether or not he has jurisdiction in the case, record any confession or statement made to him in the course of an investigation under this Chapter or under any other law for the time being in force, or at any time afterwards before the commencement of the inquiry or trial". Provided that no confession shall be recorded by a police officer on whom any power of a Magistrate has been conferred under any law for the time being in force. Section 164 of Cr.P.C states about the recording confession or statement by the Judicial Magistrate.
8. The learned Spl. Public Prosecutor has argued that the statement given before the Magistrate has to be marked in its entirety.
9. The advocate for the accused has argued that the statement recorded under Section 164 of Cr.P.C cannot be marked in its entirety. He has argued that the statement recorded under Section 164 of Cr.P.C is a previous statement recorded during pendency of the investigation. The statement under Sections 161 and 164 of Cr.P.C are not considered as substantive piece of evidence. The statement recorded under Section 164 of Cr.P.C can be used for cross examination as to previous statement made by him and such previous statement can be used only for the purpose of contradiction in the course of cross-examination. The statement recorded under Section 164 of Cr.P.C cannot be used as a corroborative piece of evidence. Marking the entire statement recorded under Section 164 of Cr.P.C as exhibit would be erroneous and the evidence Act does not permit such a mode of proof of any fact. If it is marked it would cause immense prejudice to the defence of the accused and it would result in manifest justice. Hence, he prays not to mark the entire statement of the witnesses under Section 164 of Cr.P.C. as exhibit. 8
10. The advocate of the accused has furnished the decision reported in ILR2021KAR3469between Hanumantha Mogaveera Vs. State of Karnataka, wherein the Hon'ble High Court has held that the statement recorded under Section 164 of Cr.P.C cannot be considered to be evidence under Section 35 of POCSO ACT. In the said judgment at para No.25 it is held that recording of statement under Section 164 of Cr.P.C being prior to the commencement of trial it cannot be considered to be evidence Sub Section (1) of Section 35 of POCSO ACT. In para No.37 wherein it has been observed that Statement under Section 164 of Cr.P.C cannot be treated as substantive evidence of facts stated. Such a statement can be used to discredit the evidence of the witness but not for any other purpose.
11. In para No.29 of Hon'ble High Court of Karnataka has citied the decision of Ramkishan Sigh Vs. Harmith Kaur and other, wherein Hon'ble Supreme Court opined that the statement under Section 164 of Cr.P.C is not a substantive evidence. It could be used to corroborate statement of witness or to contradict a witness.
12. He has also furnished the decision of Hon'ble High Court of Karnataka reported in ILR2006KAR4623between T. Diwakara and others Vs. State of Karnataka, wherein the Hon'ble High Court has held that, statement recorded under Section 164 of Cr.P.C. does not have any better legal status than the one recorded under Section 161(3) of Cr.P.C.
13. He has also furnished the decision of Hon'ble Supreme Court of India reported (2020) 7 SCC722between Somasundaram @ Somu Vs. State represented by its Deputy Commissioner of Police, wherein the Hon'ble Supreme Court has stated as under:
81. Section 164 of Cr.P.C enables the recording of the statement or confession before the Magistrate. Is such statement substantive evidence?. What is the purpose of recording the statement or confession under Section 164?. What would be the position if the 9 person giving the statement resiles from the same completely when he is examined as a witness?. These questions are not resintegra. Ordinarily, the prosecution which is conducted through the State and the police machinery would have custody of the person. Though, Section 164 does provide for safeguards to ensure that the statement or a confession is a voluntary affairs it may turn out to be otherwise. We may advert to statements of law enunciated by this Court over time.
82. As to the importance of the evidence of the statement recorded under Section 164 and as to whether it constitutes substantial evidence, we may only advert to the following judgment i.e., in George Vs. State of Kerala. (SCC p.
624. para No.36) "36...... In making the above and similar comments the trial court again ignored a fundamental rule of criminal jurisprudence that a statement of a witness recorded under Section 164 of Cr.P.C cannot be used as substantive evidence and can be used only for the purpose of contradicting or corroborating him", 83. What is the object of recording the statement, originally of witnesses under Section 164 has been expounded by this court in R. Shaji Vs. State of Kerala. (SCC. P, 279, paras 27-28) 27. So far as the statement of witnesses recorded under Section 164 is concerned, the object is twofold; in the first place, to deter the witness from changing his stand by denying the contents of his previously recorded statement, and secondly, to tide over immunity from prosecution by the witness under Section 164. A proposition to the effect that if a statement of a witness, is recorded under Section 164, his evidence is in court should be discarded, is not at all warranted.
28. Section 157 of the Evidence Act makes it clear that a statement recorded under Section 164 of Cr.P.C, can be relied upon for the purpose of corroborating statements made by witnesses in the committal court or even to contradict the same. As the defence had no opportunity to cross-examine the witnesses whose statements are recorded under Section 164 of Cr.P.C, such statements cannot be treated as substantive evidence. 10
84. Thus, in a case where a witness, in his statement under Section 164 of Cr.P.C. makes culpability of the accused beyond doubt but when he is put on the witness stand in the trial, he does a complete somersault, as the statement under Section 164 is not substantial evidence then what would be position?. The substantive evidence is the evidence rendered in the court, should there be no other evidence against the accused, it would be impermissible to convict the accused on the basis of the statement under Section 164.
14. He has also furnished the decision of Hon'ble Supreme Court reported in (2021) 10 SC598between Criminal Trails Guidelines Regarding Inadequacies and Deficiencies in Re Vs. State of Andhra Pradesh and others, wherein at Sl.No.10 Hon'ble Supreme Court has held as under:
10. REFERENCES TO STATEMENTS UNDER SECTION161AND164CRPC: i. During cross examination, the relevant portion of the statements recorded under Section 161 Cr.PC used for contradicting the respective witness shall be extracted. If it is not possible to extract the relevant part as aforesaid, the Presiding Officer, in his discretion, shall indicate specifically the opening and closing words of such relevant portion, while recording the deposition, through distinct marking. ii. In such cases, where the relevant portion is not extracted, the portions only shall be distinctly marked as prosecution or defence exhibit as the case may be, so that other inadmissible portions of the evidence are not part of the record. iii. Incases, where the relevant portion is not extracted, the admissible portion shall be distinctly marked as prosecution or defence exhibit as the case may be, 11 iv. The aforesaid rule applicable to recording of the statements under Section 161 shall mutatis mutandis apply to statements recorded under Section 164 of the Cr.PC, whenever such portions of prior statements of living persons are used for contradiction/corroboration. v. Omnibus marking of the entire statement under S. 161 and 164 Cr.P.C shall not be done.
15. As per the above decisions it is clear that the rules applicable to the recording the statement under Section 161 shall mutatis mutandis apply to the statement recorded under Section 164 of Cr.P.C and they can be used only for contradiction and corroboration at time of cross-examination.
16. In this case now the learned Spl. Public Prosecutor intends to mark the statement recorded by the PW-1 before Magistrate. But as per the above decisions it is clear that the statement recorded under Section 164 of Cr.P.C can be used only for corroboration ог contradiction as it is a previous statement given before the trial. Hence, this court is of the view that the above decisions aptly applicable to the present case on hand. Hence, this court is of the view that statement of the witnesses recorded under Section 164 of Cr.P.C cannot be marked in chief-examination. Hence, I answer Point No.1 in the Negative and proceed to pass the following:
ORDERStatement recorded by the witnesses under Section 164(5) of Cr.P.C cannot be marked in chief- examination of the witnesses and it can be used only for contradiction or corroboration at the time of cross- examination. Sd/-21/06/24 Spl, 2nd Addl. Dist & Sessions Judge Chitradurga.” 12 The reasons so rendered by the concerned Court are on the footing that barring marking of the statement under Section 161 of the Cr.P.C. would mutatis mutandis apply to the statement recorded under Section 164. But, it was permitted to be used for corroboration or contradiction at the time of cross-examination. How it was used later is required to be analyzed, for which the evidence is necessary to be noticed. The cross-examination of the witness on 01-07-2024 reads as follows: “.... .... .... ¢:26.08.2022 gÀAzÀÄ £Á£ÀÄ, ZÁ¸Á-3, ZÁ¸Á 11, 12 ªÉÄʸÀÆj£À MqÀ£Ár ¸ÀA¸ÜÉUÉ ºÉÆÃzɪÀÅ. MqÀ£Ár ¸ÀA¸ÉÜAiÀÄ°è £À£ÀUÉ ªÀÄvÀÄÛ ZÁ¸Á-3 gÀªÀjUÉ PË£Éì°AUï ªÀiÁrgÀÄvÁÛgÉ. ¸ÀzÀj PË£Àì°AUï£À°è £Á£ÀÄ ªÀÄvÀÄÛ ZÁ¸Á-3 1£Éà DgÉÆæ £ÀªÀÄä eÉÆvÉUÉ PÉlÖzÁV £ÀqÉzÀÄPÉƼÀÄîwÛzÀÝ §UÉÎ ªÀÄvÀÄÛ 2£Éà DgÉÆæ £ÀªÀÄUÉ ºÉÆqÉAiÀÄÄwÛzÀÝ §UÉÎ w½¹gÀÄvÉÛêÉ. 2£Éà DgÉÆæ eÉÆvÉ EzÀݪÀjUÉ ZÉ£ÁßV £ÉÆÃrPÉƼÀÄîwÛzÀÄÝ, £ÀªÀÄUÉ ºÉÆqÉAiÀÄÄwÛzÀÝgÀÄ. £ÀAvÀgÀ £ÀªÀÄä£ÀÄß CzÉà ¢£À ªÉÄʸÀÆj£À ¹qÀ§Æå¹UÉ PÀgÉzÀÄPÉÆAqÀÄ ºÉÆÃVgÀÄvÁÛgÉ. C°èAiÀÄÄ ¸ÀºÀ 1 ªÀÄvÀÄÛ 2£Éà DgÉÆævÀgÀ §UÉÎ «µÀAiÀÄ w½¹gÀÄvÉÛêÉ. £ÀAvÀgÀ £ÁªÀÅ MqÀ£Ár ¸ÀA¸ÉÜUÉ §A¢gÀvÉÛêÉ. ¢:27.08.2022 gÀAzÀÄ £ÀdgÁ¨Ázï ¥ÉÆðøÀgÀÄ ªÀÄvÀÄÛ MqÀ£Ár ¸ÀA¸ÉÜAiÀĪÀgÀÄ avÀæzÀÄUÀðzÀ ¹qÀ§Æå¹UÉ PÀgÉzÀÄPÉÆAqÀÄ §AzÀgÀÄ. DUÀ gÁwæAiÀiÁVvÀÄÛ. (F ºÀAvÀzÀ°è ªÀÄzsÁåºÀߣÀzÀ ¨sÉÆÃd£À «gÁªÀĪÁzÀÝjAzÀ ªÀÄÄAzÀĪÀgÉzÀ ªÀÄÄRå «ZÁgÀuÉAiÀÄ£ÀÄß ªÀÄzsÁåºÀß 3.00 UÀAmÉUÉ ªÀÄÄAzÀÆqÀ¯ÁVzÉ) (In Camera Proceedings ªÀÄÄSÁAvÀgÀ ¸ÁQëAiÀÄ ºÉýPÉAiÀÄ£ÀÄß £À£Àß GPÀÛ¯ÉÃR£ÀzÀAvÉ ¨ÉgÀ¼ÀZÀÄÑ¥Àr¹zÉ.) N¢ ºÉý PÉý ¸Àj EzÉ. ¸À»/-10.06.24 «±ÉõÀ, 2£Éà C¥ÀgÀ f¯Áè ªÀÄvÀÄÛ ¸ÀvæÀ £ÁåAiÀiÁ¢üñÀgÀÄ, avÀæzÀÄUÀð. 13 (MqÀ£Ár J£ïfN EAzÀ ²æêÀÄw ¸ÀĪÀiÁ, PÉëÃvÀæ ¸ÀAWÀlPÀgÀÄ, EªÀgÀÄ £ÉÆAzÀ ¨Á®QAiÀÄ eÉÆvÉ ºÁdjgÀÄvÁÛgÉ. £ÉÆAzÀ ¨Á®Q ¸ÀzÀj ²æêÀÄw ¸ÀĪÀiÁ gÀªÀgÀÄ vÀªÀÄä eÆÉ vÉ EgÀ®Ä M¦àgÀÄvÁÛgÉ. DgÉÆæUÀ¼ÀÄ ºÁdgÁVzÀÄÝ DgÉÆæUÀ¼À ªÀÄÄAzÉ ¸ÁQëUÉ PÁtzÀ ºÁUÉ §lÉÖ ¥ÀgÀzÉAiÀÄ£ÀÄß ºÁPÀ¯ÁVzÉ). ªÀÄzsÁåºÀß 4.00 UÀAmÉUÉ ¸ÁQëAiÀÄ£ÀÄß ¥ÀÄ£À: PÀgɬĹ ¥ÀæªÀiÁt ªÀZÀ£À ¨sÉÆâü¸À¯Á¬ÄvÄÀ. ªÀÄÄAzÀĪÀgÉzÀ ªÀÄÄRå «ZÁgÀuÉ «±ÉõÀ ¸ÀPÁðj C©üAiÉÆÃdPÀgÀªÀjAzÀ: ¸ÀzÀj ¢£À £ÁªÀÅ avÀæzÀÄUÀðzÀ ¹qÀ§Æå¹ PÀZÉÃjAiÀÄ°è EzÉÝêÀÅ. ¢:28.08.2022 gÀAzÀÄ ¨É¼ÀUÉÎ ¥ÉÆðøÀgÀÄ £ÀªÀÄUÉ ¹qÀ§Æå¹ PÀZÉÃjAiÀÄ°è «ZÁgÀ ªÀiÁrgÀÄvÁÛgÉ. £Á£ÄÀ DgÉÆæUÀ¼À §UÉÎ ªÀÄvÀÄÛ ¯ÁAiÀÄgï UÀAUÁzÀsgï ªÀÄvÀÄÛ §¸ÀªÁ¢vÀå EªÀgÀ §UÉÎ ºÉýgÀÄvÛÉãÉ. £Á£ÀÄ 1£Éà DgÉÆæAiÀÄ §UÉÎ PË£ïìgï gÀªÀjUÉ 1£Éà DgÆÉ Ã¦ £À£Àß ªÉÄÊ J¯Áè ªÀÄÄlÄÖªÀÅzÀÄ JzÉ ¨sÁUÀ, ¨É£ÀߣÀÄß ªÀÄÄlÄÖªÅÀzÀÄ ªÀÄvÀÄÛ ¸ÀªÀgÀĪÀÅzÄÀ, £À£ï ºÉÆmÉÖAiÀÄ ¨sÁUÀªÀ£ÀÄß ªÀÄÄlÄÖªÀÅzÀÄ ªÄÀvÄÀÛ £À£ÀߣÀÄß ¨ÉvÀÛ¯É ªÀiÁrzÀÝ §UÉÎ ºÉýgÀÄvÉÛãÉ. ¨Éqï ªÉÄÃ¯É £À£ÀߣÀÄß ¨ÉvÀÛ¯É ªÀiÁr £À£Àß ªÉÄÊ ªÄÉÃ¯É ºÉÆgÀ¼ÁqÀĪÀÅzÀÄ ªÀiÁqÀÄwÛzÀÝgÀÄ. 1£Éà DgÉÆæAiÀÄÄ ¸ÀºÀ ¨ÉvÀÛ¯ÁVzÀÝgÀÄ. £Á£ÀÄ ¸ÆÀ ¸ÄÀ ªÀiÁqÀĪÀ eÁUÀªÀ£ÀÄß ªÀÄÄlÄÖªÀÅzÀÄ ªÀiÁqÀÄwÛzÀÝgÀÄ. £À£Àß eÉÆvÉUÉ ¸ÉPïì ªÀiÁrgÀÄvÁÛgÉ. £ÀAvÀgÀ £À£ÀߣÀÄß ªÀÄvÀÄÛ ZÁ¸Á 3 EªÀgÀ£ÀÄß ¹qÀ§Æå¹ gÀªÀgÀÄ ªÀÄvÀÄÛ ¥ÉưøÀgÀÄ f¯Áè D¸ÀàvÉæ avÀæzÀÄUÀðPÉÌ PÀgÉzÀÄPÉÆAqÀÄ ºÉÆÃzÀgÀÄ. f¯Áè D¸ÀàvÉæAiÀÄ°è £Á£ÀÄ ªÉÊzÀåjUÉ 1£Éà DgÉÆæ £À£Àß eÉÆvÉ ¸ÉPïì ªÀiÁr »A¸É PÉÆlÖ §UÉÎ ªÀÄvÀÄÛ vÀ©âPÉÆAqÀ §UÉÎ ºÉýgÀÄvÉÛãÉÀ. ªÉÆzÀ®Ä ZÁ¸Á-3 EªÀgÀ zÉÊ»PÀ ¥ÀjÃPÉëAiÀÄ£ÀÄß ªÉÊzÀågÀÄ ªÀiÁrgÀÄvÁÛgÉ. ZÁ¸Á-3 ¥ÀjÃPÉë ¸ÀªÀÄAiÀÄzÀ°è QgÀÄZÀĪÀÅzÀÄ ªÀiÁqÀÄwÛzÀÝjAzÀ £Á£ÀÄ D ¢£À zÉÊ»PÀ ¥ÀjÃPÉë ªÀiÁr¹PÉÆAr®è. ªÉÊzÀågÀÄ £À£Àß ¸À» ¥ÀqÉ¢gÀÄvÁÛgÉ. ¸ÀzÀj ¸À»AiÀÄ£ÀÄß £ÉÆÃrzÀgÉ UÀÄgÀÄw¸ÀÄvÉÛãÉ. ¸ÁQëAiÀÄÄ ¸ÀzÀj ªÉÄrPÀ¯ï zÁR¯ÉAiÀÄ°è EgÀĪÀ 3 ¸À»UÀ¼À£ÀÄß £ÉÆÃr UÀÄgÀÄw¹gÀÄvÁÛgÉ. F ºÀAvÀzÀ°è DgÉÆæ ¥ÀgÀ ªÀQîgÀÄ ¸ÀzÀj zÁR¯ÉAiÀÄ£ÀÄß UÀÄgÀÄw¸À®Ä §gÀĪÀÅ¢®è JAzÀÄ vÀPÀgÁgÀÄ ªÀiÁrgÀÄvÁÛgÉ ¸ÁQëAiÄÀÄ vÀ£Àß ¸À»AiÀÄ£ÀÄß UÀÄgÀÄw¹zÀÝjAzÀ DgÉÆæ ¥ÀgÀ ªÀQîgÀ vÀPÀgÁgÀ£ÀÄß vÀ½î ºÁQ ¸ÀzÀj zÁR¯ÉAiÀÄ£ÀÄß ¤¦-1 JAzÀÄ ¸ÁQëAiÀÄ 3 ¸À»UÀ¼À£ÀÄß ¤¦-1(J), ¤¦-1(©), ¤¦-1(¹) JAzÄÀ UÀÄgÀÄw¸À¯Á¬ÄvÀÄ. ¢:
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8. The Apex Court in the case of CRIMINAL TRIALS GUIDELINES REGARDING INADEQUACIES AND DEFICIENCIES, IN RE v. STATE OF ANDHRA PRADESH1 has held as follows: “…. …. ….
12. It was pointed out by the learned Amici Curiae that the practice adopted predominantly in all trials is guided by the decision of this Court in Bipin Shantilal Panchal v. State of 1 (2021) 10 SCC59817 Gujarat [Bipin Shantilal Panchal v. State of Gujarat, (2001) 3 SCC1 2001 SCC (Cri) 417]. with respect to objections regarding questions to be put to witnesses. This Court had termed the practice of deciding the objections, immediately as “archaic” and indicated what it felt was an appropriate course: (SCC pp. 5-6, paras 13-15) “13. It is an archaic practice that during the evidence-collecting stage, whenever any objection is raised regarding admissibility of any material in evidence the court does not proceed further without passing order on such objection. But the fallout of the above practice is this : Suppose the trial court, in a case, upholds a particular objection and excludes the material from being admitted in evidence and then proceeds with the trial and disposes of the case finally. If the appellate or the revisional court, when the same question is recanvassed, could take a different view on the admissibility of that material in such cases the appellate court would be deprived of the benefit of that evidence, because that was not put on record by the trial court. In such a situation the higher court may have to send the case back to the trial court for recording that evidence and then to dispose of the case afresh. Why should the trial prolong like that unnecessarily on account of practices created by ourselves. Such practices, when realised through the course of long period to be hindrances which impede steady and swift progress of trial proceedings, must be recast or remoulded to give way for better substitutes which would help acceleration of trial proceedings.
14. When so recast, the practice which can be a better substitute is this: Whenever an objection is raised during evidence taking stage regarding the admissibility of any material or item of oral evidence the trial court can make a note of such objection and mark the objected document tentatively as an exhibit in the case (or record the objected part of the oral evidence) subject to such objections to be decided at the last stage in the final judgment. If the court finds at the final stage that the objection so raised is sustainable the Judge or Magistrate can keep such evidence excluded from consideration. In our view there is no illegality in adopting such a course. (However, we make it clear that if the objection relates to deficiency of stamp duty of a document the court has to 18 decide the objection before proceeding further. For all other objections the procedure suggested above can be followed.) 15. The above procedure, if followed, will have two advantages. First is that the time in the trial court, during evidence-taking stage, would not be wasted on account of raising such objections and the court can continue to examine the witnesses. The witnesses need not wait for long hours, if not days. Second is that the superior court, when the same objection is recanvassed and reconsidered in appeal or revision against the final judgment of the trial court, can determine the correctness of the view taken by the trial court regarding that objection, without bothering to remit the case to the trial court again for fresh disposal. We may also point out that this measure would not cause any prejudice to the parties to the litigation and would not add to their misery or expenses.
13. It was argued by the Amici Curiae that the procedure, whereby the courts record answers to all questions, regardless of objections, leads to prolonged and lengthy cross-examination, and more often than not, irrelevant facts having no bearing on the charge or the role of the accused, are brought on record, which often result in great prejudice. It is pointed out that due to the practice mandated in Bipin Shantilal Panchal [Bipin Shantilal Panchal v. State of Gujarat, (2001) 3 SCC1:
2001. SCC (Cri) 417]. , such material not only enters the record, but even causes prejudice, which is greatly multiplied when the appellate court has to decide the issue. Frequently, given that trials are prolonged, the trial courts do not decide upon these objections at the final stage, as neither the counsel addresses arguments. Therefore, it is submitted that the rule in Bipin Shantilal Panchal [Bipin Shantilal Panchal v. State of Gujarat, (2001) 3 SCC1 2001 SCC (Cri) 417]. requires reconsideration.” The Apex Court, a little earlier, in the case of SOMASUNDARAM v. STATE2 has held as follows: “…. …. …. 2 (2020) 7 SCC72219 Purport and value of Section 164 CrPC81 Section 164 CrPC enables the recording of the statement or confession before the Magistrate. Is such statement substantive evidence?. What is the purpose of recording the statement or confession under Section 164?. What would be the position if the person giving the statement resiles from the same completely when he is examined as a witness?. These questions are not res integra. Ordinarily, the prosecution which is conducted through the State and the police machinery would have custody of the person. Though, Section 164 does provide for safeguards to ensure that the statement or a confession is a voluntary affair it may turn out to be otherwise. We may advert to statements of law enunciated by this Court over time.
82. As to the importance of the evidence of the statement recorded under Section 164 and as to whether it constitutes substantial evidence, we may only advert to the following judgment i.e. in George v. State of Kerala [George v. State of Kerala, (1998) 4 SCC605:
1998. SCC (Cri) 1232 : AIR1998SC1376 : (SCC p. 624, para
36) “36. … In making the above and similar comments the trial court again ignored a fundamental rule of criminal jurisprudence that a statement of a witness recorded under Section 164 CrPC, cannot be used as substantive evidence and can be used only for the purpose of contradicting or corroborating him.
83. What is the object of recording the statement, ordinarily of witnesses under Section 164 has been expounded by this Court in R. Shaji v. State of Kerala [R. Shaji v. State of Kerala, (2013) 14 SCC266: (2014) 4 SCC (Cri) 185]. : (SCC p. 279, paras 27-28) “27. So far as the statement of witnesses recorded under Section 164 is concerned, the object is twofold; in the first place, to deter the witness from changing his stand by denying the contents of his previously recorded statement, and secondly, to tide over immunity from prosecution by the witness under Section 164. A proposition to the effect that if a statement of a witness is recorded under Section 164, his evidence in court should be discarded, is not at all 20 warranted. (Vide Jogendra Nahak v. State of Orissa [Jogendra Nahak v. State of Orissa, (2000) 1 SCC272 2000 SCC (Cri) 210]. and CCE v. Duncan Agro Industries Ltd. [CCE v. Duncan Agro Industries Ltd., (2000) 7 SCC53:
2000. SCC (Cri) 1275]. ) 28. Section 157 of the Evidence Act makes it clear that a statement recorded under Section 164 CrPC, can be relied upon for the purpose of corroborating statements made by witnesses in the committal court or even to contradict the same. As the defence had no opportunity to cross-examine the witnesses whose statements are recorded under Section 164 CrPC, such statements cannot be treated as substantive evidence.
84. Thus, in a case where a witness, in his statement under Section 164 CrPC, makes culpability of the accused beyond doubt but when he is put on the witness stand in the trial, he does a complete somersault, as the statement under Section 164 is not substantial evidence then what would be the position?. The substantive evidence is the evidence rendered in the court. Should there be no other evidence against the accused, it would be impermissible to convict the accused on the basis of the statement under Section 164.” (Emphasis supplied) 9. A Division Bench of this Court in HANUMANTHA MOGAVEERA v. STATE OF KARNATAKA3 has held as follows: “…. …. ….
23. The first point of reference is, whether the statement which has been recorded under Section 164 of Cr.P.C. could be considered to be an evidence under Section 35 of the POCSO Act. In our considered view, the same cannot be equated as one and the same. As already noted, a statement under Section 164 of Cr.P.C., is during the course of investigation or at any time 3 ILR2021KAR346921 afterwards before the commencement of the trial. But, the evidence recorded before the Special Court under Section 35 of the POCSO Act is during the course of the trial. The two cannot be equated and neither are they on same plane. … … … 32. Recently, the Hon'ble Supreme Court in Somasundaram @ Somu v. State Reptd. by the Deputy Commissioner of Police [(2020) 7 SCC722]., (Somasundaram) has discussed the purpose and value of statement of confession recorded under Section 164 Cr.RC. and in the context of whether such a statement recorded under Section 164 Cr.RC, constitutes substantial evidence. It was observed that it cannot be used as substantive evidence and it can only be used for contradicting or corroborating the maker of the statement. While placing reliance on George v. State of Kerala [(1998) 4 SCC605]. , and while referring to R. Shaji v. State of Kerala [(2013) 14 SCC266]. it was observed that the statement of witnesses recorded under Section 164 Cr.P.C. has two-fold object : firstiy, to deter the witness from changing his stand by denying the contents of his previously recorded statement, and secondly, to tide over immunity from prosecution by the witness under Section 164 Cr.P.C. It was also categorically observed that if a statement of witness is recorded under Section 164 Cr.P.C., his evidence in Court should be discarded, is not at all warranted, vide Jogendra Nahak v. State of Orissa [(2000) 1 SCC272].. … … … 38. In view of the aforesaid discussion, we answer question No.1 by holding that the statement recorded under Section 164 of Cr.P.C., cannot be considered to be evidence under Section 35 of the POCSO Act.
10. The learned senior counsel has also placed reliance upon the judgment of the High Court of Telangana in CHOPPARI KUMAR v. STATE OF TELANGANA4 wherein it is held as follows: “…. …. …. 4 2022 Crl.L.J.
3936 22 6. The practice adopted by the trial Court in marking Section 164 CrPC statement is incorrect. Statement of a witness recorded under Section 164 CrPC is a previous statement and can only be confronted in accordance with Section 145 of the Evidence act and relevant portion should be made part of the deposition. It appears that for the reason of witness accepting his statement under Section 164 of CrPC, it was marked, which procedure is incorrect. For the purpose of adjudicating the appeal, the statement of Ex.P12 is extracted above.” The Apex Court in Criminal Trials supra was streamlining the procedure adopted for speedy disposal of cases. While considering the point, the Apex Court holds that omnibus marking of entire statement under Sections 161 and 164 shall not be done; it is not done in the case at hand. The Apex Court in the case of SOMASUNDARAM supra also holds that statement recorded under Section 164 of the Cr.P.C., if it is found to be genuine, it can be used as an important piece of evidence to connect the accused with the crime. The Apex Court at paragraph 84 observes that in case where a witness in the statement under Section 164 makes culpability of the accused beyond doubt but when he is put on the witness stand in the trial, he does a complete somersault. The substantive evidence rendered would be in the court at the time of trial. Section 164 statement is not a substantive evidence. 23
11. The Division Bench of this Court in HANUMANTHA MOGAVEERA’S case supra while answering challenge to the trial in a POCSO case observes that the victim’s 164 statement cannot be marked. Same goes with the Telangana High Court. It is not marked in the case at hand. The attempt to mark is thwarted by the order passed by the concerned Court.
12. It becomes apposite to refer to the statement relied on by the Additional Special Public Prosecutor in the case of RAM KISHAN SINGH v. HARMIT KAUR5 wherein the Apex Court holds as follows: “…. …. ….
8. A statement under Section 164 of the Code of Criminal Procedure is not substantive evidence. It can be used to corroborate the statement of a witness. It can be used to contradict a witness. The first information report was considered by the Sessions Judge. Any special consideration of the statement of Hazura Singh under Section 164 of the Code of Criminal Procedure could not have produced a different result by reason of the conclusions of the Sessions Judge as to rejecting the oral evidence of Nihal Kaur, Harmit Kaur and Hazura Singh as unreliable, untruthful and unworthy of credence. … … … 10. The High Court in setting aside the acquittal said that the result would have been different if the Sessions Judge had taken into consideration the statement of Hazura Singh Exhibit 5 (1972) 3 SCC28024 P-4 with which Hazura Singh had been confronted. In cross- examination Hazura Singh said that the statement before the Magistrate Exhibit P-4 was made under threat and was a wrong statement. The Sessions Judge found that Hazura Singh made the same statement disowning the first information report. Hazura Singh was torn in his conscience between emotion for his son the appellant on the one hand and his wife Nihal Kaur and the deceased son Bharpur Singh on the other.” The Apex Court holds that a statement under Section 164 of the Cr.P.C., is not substantive evidence. It can be used to corroborate a witness. It is exactly what the prosecution has attempted in the evidence that is recorded in the case at hand.
13. In somewhat identical circumstance, the High Court of Calcutta in SK. KHELAFAT MOJHI v. THE STATE OF WEST BENGAL6 has held as follows: “The present petitioner is facing his trial of an offence punishable under Section 376 of the Indian Peal Code before the Learned Additional District & Sessions Judge, Fast Track 2nd Court, Uluberia, Howrah. In course of such trial, the statement of the victim girl recorded under Section 164 of the Code of Criminal Procedure was tendered by the Investigating Officer of the case and was marked as Exhibit — 9. However, defence raised an objection to that on the ground no statement under Section 164 of the Code can be marked exhibit and be admitted into evidence without the Learned Magistrate concerned who recorded such statement being examined in Court. The Learned Trial Court rejected such objection. Hence, this Criminal Revision. 6 2010 SCC OnLine Cal.1063 25 “2. Heard Mr. Rabindra Nath Pal, Learned Counsel appearing for the petitioner, Mr. Debabrata Roy, Learned Counsel appearing for the State as well as Mr. Manjit Singh, appearing as Amicus Curiae.
3. In this case, the short question that arises for decision, as to whether a statement recorded under Section 164 of the Code of Criminal Procedure can be admitted into evidence and be marked as exhibit, without the concerned Magistrate recorded such statement being examined during the trial.
4. According to the Learned Advocate of the petitioner, although the Learned Magistrate was very much available but in spite of repeated summons were issued, he did not turn up. He further submitted that it transpired from the 164 statement of the victim that the Learned Magistrate has recorded something incriminating against the petitioner, which has not been stated by the victim girl in her evidence during the trial. Thus, he submitted if the Learned Magistrate is not examined, then in that case the accused shall lost the opportunity to take such contradiction with reference to the evidence of the victim girl. On the other hand, Mr. Debabrata Roy, Learned Counsel appearing for the State, submitted before this Court that there is no bar to exhibit a statement recorded under Section 164 of the Code of Criminal Procedure without the examination of the concerned Magistrate recorded the same and such statement may be taken into consideration by the Trial Court.
5. Whereas, according to Mr. Manjit Singh, Advocate appearing as Amicus Curiae, there is no bar in exhibiting a statement recorded by a Learned Magistrate, be that be a confession of an accused or a statement of a witness without examining the Learned Magistrate during the course of trial. According to him, such statement can very well be tendered into evidence by the Investigating Officer of this case. In support of his submissions, Mr. Singh relied on a decision of the Hon'ble Supreme Court in the case of Madi Ganga v. State of Orissa, reported in AIR1981SC1165 In paragraph 5 of the said decision, the Hon'ble Supreme Court held as follows; 26 “5. ……..The Learned Magistrate has put to the accused all the necessary questions to satisfy himself that the confession was voluntary. He has also appended the necessary certificate. We do not accept Shri Jain's submission that the Learned Magistrate should have been examined as a witness. Section 80 of the Evidence Act makes the examination of the Magistrate unnecessary. It authorizes the Court to presume that the document is genuine, that any statements as to the circumstances under which it was taken are true and that such confession was truly take in accordance with law.” Mr. Singh further relied on a decision in the case of Guruvindapalli Anna Rao & Ors. v. The State of A.P., reported in 2003 Cri. L.J.
3253, where the Hon'ble Division Bench of the Andhra Pradesh High Court in paragraph 7 held as follows; “7. We could like to put one more discrepancy on record, viz., that while recording evidence, the learned II Additional Sessions Judge had summoned the I Additional Munsif Magistrate, Tenali (P.W.
10) to prove the statement of P.W. 1 recorded by him under Section 164, Cr.P.C. This Court has already ruled if any Magistrate records the statement of a witness under Section 164, Cr.P.C., it is not necessary for the Sessions Judges to summon that Magistrate to prove the contents of the statement recorded by him. This Court has already ruled that when a Magistrate, discharging his official functions as such, records the statement of any witness under Section 164, Cr.P.C., such statement is a ‘public document’ and it does not require any formal proof. …………..” Mr. Singh relied on a Special Bench decision of our High Court in the case of Padam Prashad Upadhyaya v. Emperor, reported in AIR1929Calcutta 617, Special Bench. The relevant portion of page 626 is quoted below; “S. 80, Evidence Act does not deal with the question of admissibility of the documents referred to therein but simply dispenses with the necessity of their formal proof by raising the presumption that everything in connection with them had been legally and correctly done i.e., (i) that the documents purporting to be record of evidences or statements or confessions are genuine (ii) that the statements as to the circumstances under which they were taken made by the officer who affixed his signature are true 27 and (iii) that the evidence, statement or confession was duly taken.” Lastly, Mr. Singh relied on another decision in the case of Sadulla v. Emperor, reported in AIR1938Lahore 477. The Lahore High Court held as follows; “The fact that the person who made the statement under S. 164 is the person in Court can be proved by the police officer who had the statement recorded and the trying Magistrate need not be examined.
6. Now, having regards to the case laws relied upon by Mr. Singh, indisputably a statement of witness recorded under Section 164 of the Code can very well be admitted into evidence and be marked as exhibit without the Learned Magistrate who recorded the statement being examined in Court. But, such statement not being a substantive piece of evidence can only be used either to contradict or to corroborate the maker thereof. According to the learned advocate of the petitioner some incriminating statement although was made by the victim in her statement recorded under Section 164 of the Code, but such statement was not found place in her substantive evidence in Court, if that be so non- examination of the Learned Magistrate recorded such statement will not in any way prejudice the petitioner. This criminal revision has no merit and accordingly stands dismissed. Interim order, if any, stands vacated. At the end this court record its deep appreciation for the assistance rendered by Mr. Manjit Singh, advocate appearing as Amicus Curiae.” (Emphasis supplied) The first paragraph captures the issue before the Court. It was the statement of the victim girl recorded under Section 164 to be marked as exhibit and to be admitted in evidence. The contention is 28 found at paragraph-5 and finding at paragraph-6. The Calcutta High Court holds, indisputably the statement of the witness recorded under Section 164 of the Cr.P.C. can very well be admitted into evidence. But such statement not being substantive piece of evidence can only be used either to contradict or corroborate the maker thereof.
14. The High Court of Bombay in VINOD v. STATE OF MAHARASHTRA7 again answering a similar issue has held as follows: “…. …. ….
2. The petitioner is seeking reliefs as under: B) The unilateral decision of the learned trial Court to Exhibit the statements of the witnesses recorded under Section 164 of the Criminal Procedure Code, 1973 without they being spoken about in the testification by the witnesses before the Court while recording their evidence, may kindly be faulted and that the exhibition done by the learned trial Court from Exh. 116 to 122 of the trial Court record, i.e. in Special Case (child) No.10 of 2018 may kindly be ordered to be upset and these statements de- exhibited; C. In the alternative, the defence be permitted to cross-examine the relevant witnesses on their respective statements recorded under Section 164 Cr. P.C. by allowing the application of the Petitioner recorded at Exh. 7 2021 SCC OnLine Bom. 2353 29 135 of the lower Court proceeding, being Special Case (child) No.10 of 2018, and consequently, upsetting of the impugned order of the learned trial Court passed below Exh. 135 decided on 25.02.2021.
3. It is contended that the petitioner is facing trial for the offences punishable under Sections 376(2)(i), 323 read with Section 34 of the Penal Code, 1860 (for short ‘IPC’) read with Sections 4, 5(m), 6 and 8 of the Protection of Children from Sexual Offences (POCSO) Act, 2012.
4. The charge came to be framed against the petitioner on 12.03.2018. Thereafter, the charge was altered on 12.02.2020. The prosecution led the evidence of the victim and others. The prosecution has closed the evidence and the matter was listed for hearing on 17.02.2021. During the arguments of the Public Prosecutor, the petitioner came to know that the trial Court has exhibited the statements of witnesses recorded under 164 of the Code of Criminal Procedure (for short “Cr.P.C.”) without giving notice to the petitioner. The petitioner had submitted an application (Exh.
135) for recalling of witnesses for cross-examination in the light of their statements recorded under Section 164 of the Cr. P.C. The said application came to be rejected. While rejecting the application, the trial Court has passed remarks against the Advocate of the petitioner. The said remarks are un-warranted hence, are required to be set aside. It is also prayed that the statements of witnesses recorded under Section 164 of the Cr. P.C. be de-exhibiated and in the alternative the petitioner be allowed to cross examine the witnesses.
5. Heard Mr. Hemant Surve, the learned counsel on behalf of the petitioner and Mrs. Geeta L. Deshpande, the learned APP on behalf of the Respondent-State.
6. Learned counsel for the petitioner has raised following questions which are as under: “a. Whether, the statements recorded under Section 164 of the Code of Criminal Procedure, 1973 before the learned Magisterial Court, could be exhibited under Section 80 of the Evidence Act, 1872 whereby the right of the accused to question 30 the prosecution witnesses on these statements could be snatched away?. b. Whether, the statements under Section 164 of the Code of Criminal Procedure, 1973 could be exhibited unilaterally without even affording of the copies of these statements to the accused?. c. Whether, the observations of the learned Judge, while adjudicating the application under scrutiny by this Honourable Court, were at all warranted?. and d. Whether, such observations correspond to the factuality?.
7. Learned counsel for the petitioner submitted that the trial Court is likely to read the statement of witnesses recorded under Section 164 of the Cr. P.C. as an evidence against the petitioner, which is not permissible. To substantiate his case he relied on the ratio laid down in the case of Hanumantha Mogaveera v. State of Karnataka in the case of Criminal Petition No.2951 of 2020.
8. In the case cited supra the Hon'ble Chief Justice of the Karnataka High Court by order dated 12.01.2021 constituted a Bench to consider the reference made by the Single Judge of that Court under the provisions of Protection of Children from Sexual Offences Act, 2012 (“POCSO Act”) and under Section 164 and other provisions of the Code of Criminal Procedure (“Cr.P.C.”). The Single Judge has made reference to the Division Bench in following terms: “26. At this juncture, it is brought to the notice of this Court that when already the co-ordinate Bench in the case of Vinay v. State of Karnataka, rep. by Special PP, (Supra) and other two co-ordinate Benches have taken a different view and this Court is taking a different view, then under such circumstances, the matter has to be referred to the Larger Bench to consider the aspect of laying down the law. In that light, I am of the considered opinion that the matter requires to be referred to the Larger Bench to consider the following issues:
31. i) Whether the evidence which has been recorded under Section 164 of Cr. P.C. can be considered to be an evidence under Section 35 of the POCSO Act?. ii) If the evidence of the child has not been recorded within a period of thirty days of taking cognizance of the offence, and if the Special Court does not complete the trial within a period of one year from the date of taking cognizance, whether accused is entitled to be released on bail holding that it is a default clause which gives a right to the accused?.
9. The Hon'ble Bench has answered the issue No.1 by holding that the statement recorded under Section 164 cannot be considered to be evidence under Section 35 of the POCSO Act. The Hon'ble Bench has answered the issue No.2 by holding that non compliance of Section 35 of POCSO Act cannot be a basis for releasing accused on bail as that could be the misreading of the provisions.
10. In view of the above ratio, it can be said that the statements of witnesses recorded under Section 164 of the Cr. P.C. cannot be considered to be the evidence under Section 35 of the POCSO Act.
11. It is the basic case of the petitioner that the Court has exhibited the statements of witnesses recorded under Section 164 of the Cr. P.C. without giving notice to the petitioner. According to the petitioner, the said act of the Court is unilateral and affected his rights. Admittedly the statements of witnesses are recorded by the Judicial Magistrate First Class with the help of Section 80 of the Indian Evidence Act. To appreciate the above contention one has to fall back upon the provisions of Section 80 of the Act. Therefore, the provisions of Section 80 of the Act are required to be considered, which runs as under: “80. Presumption as to documents produced as record of evidence, - Whenever any document is produced before any Court, purporting to be a record or memorandum of the evidence, or of any part of the evidence, given by a witness in a judicial proceeding or before any officer authorised by law to take such evidence, 32 or to be a statement or confession by any prisoner or accused person, taken in accordance with law, and purporting to be signed by any Judge or Magistrate, or by any such officer as aforesaid, the Court shall presume- that the document is genuine; that any statements as to the circumstances under which it was taken, purporting to be made by the person signing it, are true, and that such evidence, statement or confession was duly taken.
12. On this point a useful reference can be made to the ratio laid down in the case of Madi Ganga v. State of Orissa reported in (1981) 2 SCC224: AIR1981SC1165 wherein it is held that: “Section 80 of the Evidence Act makes the examination of the Magistrate unnecessary. It authorises the Court to presume that the document is genuine, that any statements as to the circumstances under which it was taken are true and that such confession was truly taken in accordance with law.
13. Admittedly, during the cross-examination of witnesses, their statements recorded under Section 164 of the Cr. P.C. were not shown to them but witnesses have categorically stated that their statements were recorded by the Judicial Magistrate First Class during the course of the investigation. So there is no dispute that the statements of witnesses were recorded by the Magistrate under Section 164 of the Cr. P.C.
14. On perusal of the impugned order (Exh. 135), the trial Court has made it clear that the statements of witnesses under Section 164 of the Cr. P.C. were the part of the charge-sheet. The copies of the said statements were provided to the petitioner. The petitioner has also put some questions to the witnesses wherein, the witnesses have admitted that their statements were recorded by the Judicial Magistrate First Class. It appears that inspite of having statements of witnesses recorded under Section 164 of the Cr. P.C., the petitioner has not cross-examined the witnesses, with reference to the contents of said statements. The statements of witnesses 33 are recorded under Section 164 of Cr. P.C. were exhibited on 20.12.2019. Thereafter, the matter was adjourned for time to time for arguments.
15. The petitioner came with a story that he came to know about the exhibition of statements of witnesses recorded under Section 164 of Cr. P.C. on 17.02.2021 during the arguments of the public prosecutor. It is not disputed by the petitioner that copies of the statements under Section 164 have been supplied to him along with the charge-sheet. So, the petitioner was well aware of the contents of the statements so he could have confronted the witnesses with the aid of the said statements recorded under Section 164 of the Cr. P.C. Now the petitioner cannot take stand that he was un- aware of the contents of the statements, therefore, he must be given chance to cross-examine witnesses on the basis of statements recorded under Section 164 of Cr. P.C. It is the mandate of law that the evidence of the victim should be recorded within one month from taking cognizance of the offence, which is done by the trial Court, therefore, the victim cannot be recalled for cross- examination. If she is allowed to be re-called for cross- examination, then it would be like causing trauma to her. The Trial Court has exhibited the statements of witnesses under Section 164 of the Cr. P.C. as per the provisions of law. At the same time, I must mention here that the said statements cannot be read in evidence as observed in the case of Hanumantha cited (supra). It cannot be said that as the trial Court has exhibited documents, therefore, the petitioner has caused prejudice. Therefore, on this count, the petitioner is not entitled for de-exhibition of the statements of witnesses recorded under Section 164 of the Cr. P.C. or recalling of witnesses for further cross- examination.” (Emphasis supplied) The second paragraph captures the issue. The issue is whether usage of Section 164 statement is for corroboration or 34 contradiction. The facts are found in paragraph 4. As found in the case at hand, the action of marking the document comes to be rejected. The Bombay High Court answers it holding that it is not a substantive piece of evidence but can be used for corroboration or contradiction.
15. If the law as laid down by the Apex Court, this Court or other High Courts is applied to the case at hand, what would unmistakably emerge is that a statement made under Section 164 of the Cr.P.C., is not completely barred in law to mark the said statement, but it is not a substantive evidence and it being characterized as not a substantive evidence, it is only in a slightly higher pedestal than a statement made under Section 161 of the Cr.P.C., before the Investigating Officer. It can only be used for contradiction or corroboration at the time of cross-examination. What is done in the case at hand, in the considered view of the Court, is exactly the same.
16. These are grounds that can be urged before the appellate forum in the event the case would go against the accused. This 35 Court, in exercise of jurisdiction under Section 482 of the Cr.P.C., cannot, during the trial, enter into and direct as to how the trial should be conducted, unless the conduct of the trial would result in miscarriage of justice. I do not find any such warrant in the case at hand. As observed hereinabove, it is always open to urge these contentions at the relevant point in time before the appropriate fora. I decline to exercise my jurisdiction under Section 482 of the Cr.P.C.
17. In the result, the petition lacking in merit stands rejected. Consequently, pending applications if any, also stand disposed. Sd/- (M. NAGAPRASANNA) JUDGE bkp CT:SS