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1997 DIGILAW 45 (PAT)

Diwakant Choudhary v. State Of Bihar

1997-01-21

M.Y.EQBAL

body1997
Judgment M.Y.Eqbal, J. 1. By this application filed under Sec. 482 of the Code of Criminal Procedure the petitioner has challenged the order dated 3.9.1996 passed by the Sub-Divisional Judicial, Magistrate, Dalsingsarai at Samastipur in Dalsingsarai P.S. case No. 57 of 1996 (G.R. No. 177 of 1996) whereby the learned Magistrate dismissed the petition of the petitioner filed for recording the statement of prosecution witnesses under Sec. 164 of the Code of Criminal Procedure. 2. The brief fact of the case is that the son of the petitioner Rakeshmani aged about 19-20 years was a College student and was preparing for appearing in the Bio-Chemic examination at Muzffarpur and he had come back to his village home about 10 days prior to the date of occurrence. On 17.4.1996 he left his house in the morning for going to his "Nanihal" at Barauni disclosing that he would go with his College friend Sushil Kumar. On 18.4.1996 the petitioner received information from the relation that the son of the petitioner and his friend Sushil Kumar were murdered in the broad day light by some persons of village Mahnaiya and Kamraon and the dead bodies were sent to Samastipur for post mortem. After 20-21 days the petitioner went to Village Kamraon and learnt from the eye witnesses that the accused persons of village Mahnaiya and Kamraon killed the aforesaid two boys and the witnesses gave a vivid description as to how brutally they were killed in the broad day light in the early hour of the day even in presence of an A.S.I, who also abetted the murder of Shushil Kumar. It was further alleged that when Sushil Kumar was crying for water the Jamadar (A.S.I) directed the accused persons to finish him and consequently at his instance Shushil Kumar was killed by pressing his chest. Subsequently, the other police officials came and the accused persons in order to save their skin brought the police in collusion and inspite of request by the witnesses to take action against the killers the police immediately sent the dead bodies to Samastipur and gave a false assurance that action would be taken. It was further alleged that the petitioner learnt that the eye witnesses of the village sent registered letter to D.G.P. Bihar, Patna, D.I.G. Darbhanga, S.P. Samastinpur and Ors. about the brutal murder of two young boys but to no effect. It was further alleged that the petitioner learnt that the eye witnesses of the village sent registered letter to D.G.P. Bihar, Patna, D.I.G. Darbhanga, S.P. Samastinpur and Ors. about the brutal murder of two young boys but to no effect. It was further stated that the petitioner was under the impression that the police would taken action against the guilty persons but it was subsequently learnt that the local police in collusion with the accused persons and the local M.L.A was trying to save the accused persons legal punishment. The petitioner, however, went to the police station, Dalsingsarai to ascertain about the progress of the case but the police officials refused to give the correct picture. It is further alleged that after being convicted and satisfied about the collusive move of the police to save the murderers the petitioner filed a complaint in the Court of learned Sub-divisional Judicial Magistrate, Dalsingsarai Camp at Samastipur on 4.6.1996 along with the copy of public petition sent by the villagers and witnesses to all concerned. Learned Sub-divisional Judicial Magistrate by order dated 5.6, 1996 directed the police, Dalsingsarai to institute and investigate the case with a further direction to send the F.I.R. by 1.7.1996. It further appears that on 1.7.96 when the F.I.R. was not received learned Magistrate on the prayer of the petitioner sent the copy of the complaint through the S.P. Samastiur for compliance of his order i.e, for registering the case and fixed 21.7.1996 for the receipt of the F.I.R. However, the police sent a report that the complaint case filed by the petitioner which was sent for registering the case had been tagged with Dalsingsarai P.S. case No. 57 of 1996 and investigation was going on with respect of the allegation made in the complaint petition. The aforesaid Dalsingsarai P.S. case No. 57 of 1996 was registered by the police on the basis of the statement of Dafadar Md. Rastam of the village against unknown, under Sec. 304 of the Indian Penal Code for allegedly killing the aforesaid two boys by villagers. It was further alleged that the aforesaid case No. 57 of 1996 was device to save the real culprits in collusion with the local M.L.A. It was further stated that the petitioner and witnesses appeared before the Investigating (Officer and gave their statements but the police did not record the same. It was further alleged that the aforesaid case No. 57 of 1996 was device to save the real culprits in collusion with the local M.L.A. It was further stated that the petitioner and witnesses appeared before the Investigating (Officer and gave their statements but the police did not record the same. The petitioner, therefore, in the facts and circumstances of the case, filed a petition before the learned Sub-divisional Judicial Magistrate, Dalsingsarai at Samastipur for recording the statement under Sec. 164 of the Code of Criminal Procedure of the witnesses but the learned Magistrate refused the prayer on a flimsy ground. The petitioner filed another petition on 20.9.1996 stating therein that the petitioner is the real informant and the police is spoiling the case in collusion with the accused persons besides one of them is the A.S.I of the said police station and as such statements of the witnesses be recorded under Sec. 164 of the Code of Criminal Procedure, learned Magistrate by the impugned order rejected the said application. 3. I have heard Mr. Suraj Narayan Prasad Sinha, learned Counsel appearing on behalf of the petitioner and Mr. Ashok Kumar Choudhary, learned Counsel appearing on behalf of the State. 4. For, better appreciation of the rival contention of the learned Counsel for the parties it is worth to look into the provision of Sec. 164 of the Code of Criminal Procedure which reads as under:- Sec. 164:- Recording of confessions and statements :- (1) 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 confusion 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. (2) The Magistrate shall, before recording any such confession, explain to the person making it that he is not bound to make a confession and that, if he does no, it may be used as evidence against him; and the Magistrate shall not record any such confession unless, upon questioning the person making it, he was reason to believe that it is being made voluntarily. (3) If at any time before the confession is recorded, the person appearing before the Magistrate states that he is not willing to make the confession, the Magistrate shall not authorise the detention of such person in police custody. (4) Any such confession shall be recorded in the manner provided in Section 281 for recording the examination of an accused person and shall be signed by the person making the confession; and the Magistrate shall make a memorandum at the foot of such record to the following effect :- I have explained to (name that he is not bound to make a confession and that, if he does so, any confession he may make may be used as evidence against him and I believe that his confession was voluntarily made. It was taken in my presence and hearing and was read over to the person making it and admitted by him to be correct and it contains a full and true account of the statement made by him. (5) Any statement (other than a confession) made under Sub-sec. (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 administer oath to the person whose statement is so recorded. (6) The Magistrate recording a confession or statement under this section shall forward it to the Magistrate by whom the case is to be inquired into or tried. 4. From bare perusal of the section it appears that the Magistrate has got discretion to refuse recording the statements of the witnesses whether produce or appeared but the discretion must be exercised judiciously. This section does not debet the Magistrate from recording the statements of witnesses who approach the Court directly without being produced through police. 5. Ordinarily, the statements of witnesses are recorded by Magistrate when the witness is sent by the Investigating Agency under circumstances where there is apprehension to the police that the witness may resile afterwards of may be tampered with. 6. 5. Ordinarily, the statements of witnesses are recorded by Magistrate when the witness is sent by the Investigating Agency under circumstances where there is apprehension to the police that the witness may resile afterwards of may be tampered with. 6. In the case of Ram Khelawan Singh V/s. The State of Bihar 1989 B.B.C.J. 605 this question was considered by a Bench of this Court and it was held that when the informant makes a prayer for recording a statements of some witnesses under Sec. 164 of the Code of Criminal Procedure and when he Investigation is going on, the Magistrate should not refuse the prayer. 7. It is will settled that when the case is at the stage of investigation by the Investigation Agency the Court should be very reluctant in interferring with the said investigation. However, when an application is filed by the petitioner or by the witness with a prayer to record his statement under Sec. 164 of the Code of Criminal Procedure then the Magistrate before rejecting or accepting the said application must apply his judicial mind to exercise his discretion. The Magistrate should not in a mechanical way reject the application on flimsy ground. 8. A similar question arise in a case of Md. Nanir V/s. State of Bihar and Ors. reported in 1994(2) PLJR 677 and a Bench of this Court after considering the scope of Secs. 161 and 164 of the Code held as under:- So we may come to the following conclusion on the above discussion. (1) When witness /witnesses are produced by the Investigating Officer for recording statement under Sec. 164 of the Code of Criminal Procedure the Magistrate may not have much hestigation to record his/their statement if on the circumstances, the same is fit, necessary and proper (2) when the witness/witnesses themselves appear any pray for recording of his/their statement, the Magistrate must no readily accept the same but cautiously examine the position and circumstances, i.e., degree of caution should be more in that case to assess the motive behind the same. 9. In the case of Md. Nezam V/s. State of Bihar 1996(1) BLJ 202 , a question arose as to whether an application under Sec. 164 of the Code is maintainable after completion of investigation and when the case was fixed for commitment. 9. In the case of Md. Nezam V/s. State of Bihar 1996(1) BLJ 202 , a question arose as to whether an application under Sec. 164 of the Code is maintainable after completion of investigation and when the case was fixed for commitment. The learned Single Judge allowing the said application had held as under:- From the impugned order, it is evident that investigation of the case had come to an end with the filing of the charge-sheet. The case was fixed for commitment and as mentioned in the impugned order, it was for this reason that the learned Chief Judicial Magistrate thought that it would not be just and proper to allow the prayer of the informant to record the statement of the victim. In my opinion, the learned Chief Judicial Magistrate had given a reason which was wholly untenable in law for refusing the prayer for recording the statement of the petitioners father who had been kidnapped under the provision of Sec. 164 of the Code, such a statement of witness can be recorded either in course of the investigation or even thereafter or at any time afterwards but before the commencement of the enquiry or trial. In other words, a prayer for recording such a statement cannot be rejected on the ground that the investigation has come to an end. A prayer for recording such a statement can be refused only if after the investigation has been completed either the enquiry of the trial has commenced. In the instant case, the trial had not commenced because the case had not yet been committed to the Court of Session. On the date when the prayer for recording the statement of the witnesses was made, the case was fixed for commitment. In the Code of Criminal Procedure, 1973, there is no provision for an enquiry in a commitment proceeding as was provided for in course of commitment proceedings under Chapter XVIII of the old Criminal Procedure Code. On the date when the prayer for recording the statement of the witnesses was made, the case was fixed for commitment. In the Code of Criminal Procedure, 1973, there is no provision for an enquiry in a commitment proceeding as was provided for in course of commitment proceedings under Chapter XVIII of the old Criminal Procedure Code. Sec. 209 of the new Code, provides, inter alia, that when in a case instituted on a police report or otherwise, the accused appears or is brought before the Magistrate and it appears to the Magistrate that the offence is triable exclusively by the court of Sessions he shall commit, after complying with the provisions of Section 207 or Sec. 208, as the case may be the case to the Court of Session. In this connection, a reference may be made to the forty first report of the Law Commission of India which recommended the insertion of the aforesaid new section. The Commission observed that preliminary enquiry by Magistrates in cases exclusively triable by the Court of Session is being dispensed with as much an enquiry has served no useful purpose and, on the contrary, it involves a great deal of infructuous work causing delay in the trial of serious cases. It was further observed that the abbreviated form of enquiry provided for by the amendments made in 1955 and contained in Sec. 207 A ( of the Old Code) has been the subject of controversy and opinion is almost unanimous that this procedure while solving no problems, created fresh problems. The new Section 209 of the present form was incorporated in the new Code only to enable the Magistrate to perform certain preliminary functions like granting copies, preparing the records and notifying the public prosecutor. Thus, the scheme now provides that the Magistrate taking cognizance of the case, exclusively triable by the court of Sessions, will perform these preliminary functions and formally commit the case to the Court of Session. In any view of the matter, even if the case was fixed for commitment, no enquiry had started and the learned Chief Judicial Magistrate had the necessary Jurisdiction to record the statement. Thus, the ground relied upon by the learned Chief Judicial Magistrate in refusing the prayer of the informant to record the statement of his father under Sec. 164 of the Code, is not tenable in law. 10. Thus, the ground relied upon by the learned Chief Judicial Magistrate in refusing the prayer of the informant to record the statement of his father under Sec. 164 of the Code, is not tenable in law. 10. In the instant case, from the impugned order it appears to me that the Magistrate has not even applied his mind while rejecting the application filed by the petitioner. The circumstance under which the two boys were killed by the villagers and the allegations, made by the informant who is none-else but the father of the boy killed, that in order to save the police in the real culprit in collusion with the local MLA and supporters of the local Janta Dal MLA have got P.S. case No. 57 of 1996 registered against unknown under Sec. 304 of the Indian Penal Code for the killing of the two boys by the villagers and also regard being had to the fact that the witnesses appeared before the Investigating Officer and gave their statements but the police did not record the same, I am of the opinion that it is a fit case where the Magistrate should have exercised its power under Sec. 164 of the Code of Criminal Procedure for the proper administration and justice. The learned Magistrate failed to exercise its discretion judiciously and, therefore, the impugned order refusing to record the statements of witnesses under Sec. 164 of the Code of Criminal Procedure cannot be sustained in law. 11. In the result, this application is allowed and the impugned order dated 3.9.1996 is quashed. The Sub-divisional Judicial Magistrate, Dalsingsarai at Samastipur is directed to record the statements of witnesses under Sec. 164 of the Code of Criminal Procedure in Dalsingsarai P.S. case No. 57 of 1996 (G.R. No. 177 of 1977).