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Himachal Pradesh High Court · body

2004 DIGILAW 259 (HP)

KULSUM BIBI v. STATE OF H. P.

2004-10-05

M.R.VERMA

body2004
JUDGMENT M.R. Verma, J.: This petition has been preferred by the petitioner who is a minor through her mother, against the order dated 7.8.2004 passed by the learned Judicial Magistrate, 1st Class (II), Amb, whereby application of the petitioner to record her statement under Section 164, Cr.P.G. (hereafter referred to as the Code) has been dismissed. 2. Case of the petitioner as made out in the petition is that an FIR No. 137 of 2004, dated 25.7.2004, was registered under Section 363, 366, 376, 342, 506/34, IPC and after the registration of the said FIR, she was confined in Police Station, Gagret against her will for five days and was not allowed to talk even with her parents and was "badly beaten by 2 lady constables, one male constable and Investigating Officer and threats were extended to her that she would be eliminated if names as are being told by the SHO are not added in her statement." It has been further averred that the petitioner was raped and for that matter FIR was registered but the police party forced her to add names of Iqbal Singh and Kewal Krishana whereas she never made the statement about their involvement in the crime committed against her and thus their names have been illegally added of their own by the police, who may have grudge against the said two persons. In these circumstances, the petitioner had been requesting the police party to get her statement recorded before a Magistrate. It is further case of the petitioner that on 4.8.2004 when the police allowed her to go home, she immediately sent one representation to the Superintendent of Police giving the aforesaid details but no action thereon was taken. On the contrary, she came to know of a statement given by the Superintendent of Police to the press that if the petitioner was not satisfied with the working of the police, she could go to the court. The copy of her petition to the Superintendent of Police is Annexure P-1 and the said Press report is Annexure P-2. The petitioner then through her counsel filed an application dated 7.8.2004 in the Court of Judicial Magistrate, Amb praying for recording her statement under Section 164 of the Code whereon the Magistrate orally observed that statement of a private person could not be recorded under Section 164 of the Code. The petitioner then through her counsel filed an application dated 7.8.2004 in the Court of Judicial Magistrate, Amb praying for recording her statement under Section 164 of the Code whereon the Magistrate orally observed that statement of a private person could not be recorded under Section 164 of the Code. The Magistrate finally rejected the application by the impugned order. Copy of the application and the orders respectively, are Annexures P-4 and P-3. When the matter was brought to the notice of Deputy Superintendent of Police, Amb, he also did nothing in the matter but threatened to add the names of aforesaid two persons for the reasons best known to him. It is further claimed that the investigation should have been taken over from the police and given to some independent agency or fresh investigation ought to have been ordered by the Magistrate as the petitioner is not a stranger to the proceedings. The impugned order thus is a result of misreading and misappreciating the ratio of the judgment of the Apex Court on which the Magistrate has relied and the order suffers from material irregularities, more so, because the petitioner is not a stranger to the case. Therefore, the petitioner claims to have filed the present petition solely for the cause of justice/substantial justice claiming the following reliefs: 1. That the Magistrate below be directed to record the statement of the petitioner who is not a stranger to the proceedings; 2. That the police be directed to get statement of the petitioner recorded which will ensure saving her from the respondents, particularly respondent No. 2, i.e. the Officer-in-Charge of Police Station, Gagret; and 3. The investigation of the case be ordered to be transferred from the Investigating Agency to some independent agency. The petition is supported by the affidavit of Chand Bibi, mother of the petitioner. 3. The respondents filed reply to the petition raising preliminary objections therein that the present petition is not maintainable, that the case is at present under investigation and that the petitioner appears to have been won over by the two accused persons Iqbal Singh and Kewal Krishan, who by exercising their influence being a Range Officer and retired Army Personnel, have prevailed upon the petitioner to change her statement so that they may be able to get bail. On merits, while admitting the registration of the FIR and the age of the petitioner, the allegations regarding her alleged confinement, torture, beating etc. have been denied. It is claimed that the names of the aforesaid two accused persons, whom the police allegedly want to implicate in the case, had already been mentioned in the FIR recorded on 25.7.2004, therefore, there was no occasion for the police to have pressurised, beaten, threatened, confined the petitioner to make an incriminating statement against the foresaid two accused persons who had already been mentioned by her in the FIR as the culprits. It has been denied that the police had anything against the aforesaid two persons to falsely implicate them and it has been claimed that the application of the petitioner to get her statement recorded under Section 164 of the Code has rightly been rejected. The application addressed to the Superintendent of Police, which was received in his office on 12.8.2004, was in fact sent to the Sessions Judge, Una where it was received on 7.8.2004 and was forwarded to the Superintendent of Police whose office received it on 12.8.2004. On the inquiries made by the Superintendent of Police on the said application, it was observed that "it appears that the petitioner/prosecutrix has been won over by these people through someone or some sort of pressure/inducement has been put on her by these people to change her statement to save these two persons." In so far as the allegations of beatings etc. are concerned, the same has been referred to the District Magistrate for proceedings under Rule 16/38 of the PPR as applicable to the State of Himachal Pradesh in which the suitable action will be taken as per the result of the inquiry. It is asserted that "It is not the police which is putting wrong facts in the mouth of the petitioner/prosecutrix but in fact it the accused persons who are trying to get the statement of the petitioner/prosecutrix changed to suit their design and to save their skin." 4. I have heard the learned Counsel for the petitioner and, the learned Deputy Advocate General for the respondent-State and have also gone through the relevant records. 5. It was contended by the learned Counsel for the petitioner that the petitioner is the victim-informant in the case, therefore, a material witness of the crime against her. I have heard the learned Counsel for the petitioner and, the learned Deputy Advocate General for the respondent-State and have also gone through the relevant records. 5. It was contended by the learned Counsel for the petitioner that the petitioner is the victim-informant in the case, therefore, a material witness of the crime against her. Thus, her statement is the most valuable piece of evidence in the case and it is her version which must prevail, therefore, in the given circumstances, the Magistrate had wrongly and illegally declined to record her statement under Section 164 of the Code which as per the provisions of Section 164(5) of the Code, he was obliged to record so that justice is done in the case. His failure to do so is a material irregularity and illegality, therefore, the impugned order cannot be sustained. It was further contended that in view of the allegations made by the petitioner, it is in the best interest of justice that the investigation in the case is entrusted to some independent agency so that fair investigation in the case is conducted and directions are given to the Magistrate to record the statement of the petitioner under Section 164 of the Code. 6. On the other hand, the learned Deputy Advocate General contended that the very version of the petitioner is improbable when she herself claims that the FIR had already been recorded and thereafter she was detained by the police for five days in the Police Station with a view to compel her to name the aforesaid two persons as the accused persons in the case. It was also contended that the accused persons appear to have manipulated to win over the petitioner, therefore, all the acts of the petitioner going to the press and other authorities including the Court to exonerate the aforesaid two persons, are just the actions at the behest of the said two accused persons in the case and if the request of the petitioner is acceded to, it will be perverting the course of law and justice. 7. Section 164 of the Code which provides for recording of the confessions and statements, forms part of Chapter XII of the Code relating to information to and investigation of offences by the police. All Sections contained in the chapter deal with the initiation, conduct and conclusion of investigation and matters ancillary thereto. 7. Section 164 of the Code which provides for recording of the confessions and statements, forms part of Chapter XII of the Code relating to information to and investigation of offences by the police. All Sections contained in the chapter deal with the initiation, conduct and conclusion of investigation and matters ancillary thereto. Provisions of Section 164 can only be invoked during the investigation and not before the commencement or after the conclusion of the investigation. It can, therefore, be safely said that provisions of section 164 of the Code are only a step in aid of the investigation to arrive at prima facie conclusions about the commission of the offence. Ordinarily, these provisions are meant to meet situations where the accused is desirous of making a confession or where a witness is to be bound down to avoid his turning hostile at the trial because of the apprehension that for any reason like relation with accused momentary gain or use of influence/threat by the accused or his supporters, he may desire and not state the truth at the trial. 8. In Gama and another v. State of U.P., 1987 Cri.L.J. 242, while dealing with the object of the provisions of Section 164 of the Code, the High Court of Allahabad held as under :- 10. In view of these elementary principles of interpretation of statute, the intention of the Parliament in enacting Section 163(2) and Section 164(1) has to be ascertained. The intention in bringing Sections 163(2) and Section 164(1) on the statute book was that the witnesses may not change their statements subsequently on account of fear or pressure from the defence or from other relevant quarter. In social conditions prevailing in our country it has come to the notice that tampering of prosecution witnesses has become a favour pastime of the accused persons. Further very often it has been noticed that the prosecution witnesses resile from their statements recorded under Section 161 or from similar statements, made, may be under the pressure of the persons inspiring terror or interested in defence. Under these circumstances if an investigating officer chose to get the statement of prosecution witnesses recorded under Section 164(1) before a Judicial Magistrate, he need not be blamed. This is a method provided by the wisdom of our parliament to deter the prosecution witnesses from changing their version or story subsequently at the trial. Under these circumstances if an investigating officer chose to get the statement of prosecution witnesses recorded under Section 164(1) before a Judicial Magistrate, he need not be blamed. This is a method provided by the wisdom of our parliament to deter the prosecution witnesses from changing their version or story subsequently at the trial. I am of the considered opinion that to this extent the effect is salutary. Otherwise also the witnesses would feel hesitant in changing their statements at subsequent stage or at the trial, once the same has been recorded under Section 164(1) of the Code." 9. Similar view has been taken by the Orissa High Court in Kunjukutty v. State of Kerala 1988 Cr.L.J. 504 while it held as under :-"4. The statement of a witness is generally recorded under Section 164 of the Code to fix him up with that statement when it is feared that he may resile afterwards. Ordinarily the police, in the course of investigation, sends witnesses for having their statements recorded by a Magistrate under Section 164 of the Code when they feel that there may be some uncertainty about the evidence or when it is felt that the witness may at some distance of time speak falsely or misleadingly with deliberate intention........" 10. In the case in hand the investigating agency did not sponsor under Section 164 of the Code the recording of the statement of the petitioner at whose instance the FIR itself has been recorded and her supplementary statements under Section 161 of the Code have also been recorded at different stages of the investigation. No doubt, the prosecutrix is the star witness in the case. It is in view of this status of the petitioner that the learned Counsel for her submitted that the Judicial Magistrate was duty bound to record her statement under Section 164 of the Code. Reliance to support the submission was laid on Mahabir Singh v. State of Haryana, AIR 2001 SC 2503. 11. In Mahabir Singhs case (supra) a two Judges Bench of the Honble Supreme Court vide para 21 of the judgment held as under:- "21. We have no doubt that an accused presort can appear before a Magistrate and it is not necessary that such accused should be produced by the police for recording the confession. 11. In Mahabir Singhs case (supra) a two Judges Bench of the Honble Supreme Court vide para 21 of the judgment held as under:- "21. We have no doubt that an accused presort can appear before a Magistrate and it is not necessary that such accused should be produced by the police for recording the confession. But it is necessary that such appearance must be "in the course of an investigation" under Chapter XII of the Code. If the Magistrate does not know that he is concerned in a case for which investigation has been commenced under the provisions of Chapter XII it is not permissible for him to record the confession. If any person simply barges into the Court and demands the Magistrate to record his confession as he has committed a cognizable offence, the course open to, the Magistrate is to inform the police about it. The police in turn has to take the steps envisaged in Chapter XII of the Code. It may be possible for the Magistrate to record a confession if he has reason to believe that investigation has commenced and that the person who appeared before him demanding recording of his confession is concerned in such case. Otherwise the Court of a Magistrate is not a place into which all and sundry can gatecrash and demand the Magistrate to record whatever he says as self-incriminatory." 12. As per the contention for the accused, a material witness in a criminal case for the purpose of recording his statement as provided under sub-section (5) of Section 162 shall have same and similar right of getting his statement recorded as an accused has under Section 164(1) of the Code, therefore, the Magistrate below had acted illegally in rejecting the application of the prosecutrix. 13. The contention apparently is fallacious and devoid of any merit and substance and not supportable even on the basis of the decision relied on for the petitioner. 14. Recording of confession of an accused under Section 164 of the Code, whether sponsored by the police or at the instance of the accused himself, cannot be equated with recording of the statement of a witness. 14. Recording of confession of an accused under Section 164 of the Code, whether sponsored by the police or at the instance of the accused himself, cannot be equated with recording of the statement of a witness. The ratio of Mahabir Singhs case (supra) is applicable only to the recording of the statement of an accused person whose statement the Judicial Magistrate is bound to record or to act in the manner as indicated and not to the recording of the statement of a witness. The Honble Apex Court had made it specifically clear in the para preceding above quoted para 21 of the judgment while holding as under:- "2. The sub-section makes it clear that the power of the Magistrate to record any confession or statement made to him could be exercised only in the course of investigation under Chapter XII of the Code. The section is intended to take care of confessional as well as non-confessional statements. Confession could be made only by one who is either an accused or suspected to be an accused of a crime. Subsections (2), (3) and (4) are intended to cover confessions alone, dehors non-confessional statements whereas subsection (5) is intended to cover such statements. A three Judge Bench of this court in Jogendra Nahak v. State of Orissa, 2000(1) SCC 272 : 1999 AIR SCW 2736 : AIR 1999 SC 2565 : 1999 Cri.L.J. 3976 has held that so far as statements (other than confession) are concerned they cannot be recorded by a Magistrate unless the person (who makes such statement) was produced or sponsored by investigating officer. But the Bench has distinguished that aspect from the confession recording for which the following observations have been specifically made (Para 12 of AIR, Cri.LJ): There can be no doubt that a confession of the accused can be recorded by a Magistrate. An accused is a definite person against whom there would be an accusation and the Magistrate can ascertain whether he is in fact an accused person. Such a confession can be used against the maker thereof. If it is a confessional statement, the prosecution has to rely on it against the accused." 15. In Jogendra Nahaks case referred to in the above quoted para, the Honble Apex Court held as under :- "22. Such a confession can be used against the maker thereof. If it is a confessional statement, the prosecution has to rely on it against the accused." 15. In Jogendra Nahaks case referred to in the above quoted para, the Honble Apex Court held as under :- "22. If a Magistrate has power to record statement of any person under Section 164 of the Code, even without the investigating officer moving for it, then there is no good reason to limit the power to exceptional cases. We are unable to draw up a dividing line between witnesses whose statements are liable to be recorded by the Magistrate on being approached for that purpose and those not to be recorded. The contention that there may be instances when the investigating officer would be disinclined to record statements of willing witnesses and therefore such witnesses must have a remedy to have their version regarding a case put on record, is no answer to the question whether any intending witness can straightway approach a Magistrate for recording his statement under Section 16 of the Code. Even for such witnesses provisions are available in law, e.g. the accused can cite them as defence witnesses during trial or the Court can be requested to summon them under Section 311 of the Code. When such remedies are available to witnesses (who may be sidelined by the investigating officers) we do not find any special reason why the Magistrate should be burned with the additional task of recording the statements of all and sundry who may knock at the door of the Court with a request to record their statements under Section 164 of the Code.” 23. On the other hand, if door is opened to such persons to get in and if the Magistrates are put under the obligation to record their statements, then too many persons sponsored by culprits might throng before the portals of the Magistrate courts for the purpose of creating record in advance for the purpose of helping the culprits. In the present case one of the arguments advanced by accused for grant of bail to them was based on the statements of the four appellants recorded by the Magistrate under Section 164 of the Code. It is not part of the investigation to open such a vista nor can such step be deemed necessary for the administration of justice. 24. It is not part of the investigation to open such a vista nor can such step be deemed necessary for the administration of justice. 24. Thus, on a consideration of various aspects, we are disinclined to interpret Section 164(1) of the Code as empowering a Magistrate to record the statement of a person unsponsored by the investigating agency. The High Court has rightly disallowed the statements of the four appellants to remain on record in this case. Of course, the said course will be without prejudice to their evidence being adduced during trial, if any of the parties requires it." 16. In view of the above position in law, the petitioner has no vested right to get her statement recorded under Section 164 of the Code. 17. Even on the merits of the application of the petitioner it is not possible to believe that her move was bona fide, and with a view to advance the interest of justice and not at the instance of persons interested in getting the aforesaid two accused in the case exculpated. 18. Be it stated that FIR in the case was registered on 25.7.2004 at 8.15 p.m. The petitioner in the FIR has referred to accused Iqbal Singh as a Ranger at Amb and to accuse Kewal Krishan as Kewal Krishan Fauji of her village. It is not in dispute that accused Iqbal Singh is a Ranger (Forest Range Officer) at Amb. It is also not disputed that accused Kewal Krishan Fauji is a retired army personnel of the village of the petitioner. Thus, these accused are specifically referred to in the FIR as the rapists. The petitioner vide her application Annexure P-4 dated 7.8.2004 filed to make a statement before the Magistrate below claiming that the above named accused are not the rapists and the police had been compelling her to name them amongst the other offenders as the rapists for which she was confined, coerced etc. In the police station and tortured for 5 days. 19. It is not mentioned in the application Annexure P-4 as to on which dates the petitioner was so confined, tortured and coerced by the police to name the said accused persons as the rapists in the case. It is, however, stated in the application Annexure P-4 that after coming from Police Station she made an application about the alleged confinement, beating, torture etc. It is, however, stated in the application Annexure P-4 that after coming from Police Station she made an application about the alleged confinement, beating, torture etc. Admittedly, such application is Annexure P-1 addressed to the Superintendent of Police, Una, and is stated 4.8.2004. Apparently it is improbable that the police would confine, beat and torture the petitioner to name such persons as accused on 5th day of the recording of the FIR in which they are already referred to as the accused. The petitioner vide para 4 of this petition avers that "on 4.8.2004 when petitioner was allowed to go home, petitioner immediately sent one representation to Superintendent of Police giving all the details. These averments are supported by the affidavit of the guardian of the petitioner who is admittedly a minor. Calculated on the basis of these admissions in the petitions, the 5 days alleged confinement came to an end on 4.8.2004, therefore, the period of alleged confinement etc. works out to 29.7.2004 to 4.8.2004. It is not disputed for the petitioner that FIR referring to the said accused persons as the rapists had been registered on 25.7.2004. Had there been any element of truth in what is stated in the petition, the course open to the petitioner was to ask for lodging FIR against the concerned police officials or to lodge a complaint against them in the Court. 20. In any case, it is not the case of the petitioner that she was confined, tortured and coerced to implicate the said accused persons in the offence before or at the time of recording of the FIR. It is her admitted case vide contents of para 1 of the application Annexure F-H and para 1 of this petition that it was "after the registration of the FIR" that she was confined, beaten and threatened to name such persons as told by the S.H.O. failing which she would be done to death which is improbable for the simple reason that no one will ask a person to do the act which he has already done. 21. In view of the above, it can be inferred that the petitioner, who is a minor, had not acted in filing the application Ext. P-4 and the present petition of her own accord but it appears, prima facie, that interested persons are attempting to create defence in favour of the accused persons. 21. In view of the above, it can be inferred that the petitioner, who is a minor, had not acted in filing the application Ext. P-4 and the present petition of her own accord but it appears, prima facie, that interested persons are attempting to create defence in favour of the accused persons. Such practices if allowed, is bound to pervert the course of justice. 22. It may also be pointed out here that inherent powers of the High Court can be invoked as sought to be invoked by the present petition (i) to give effect to any order under the Code; or (ii) to prevent abuse of the process of the court; or (iii) to secure ends of justice and such powers should be exercised sparingly with circumspection and in the rarest of the rare cases. This is not the case of the kind wherein the interest of justice requires this Court to grant the relief prayed which is even otherwise incapable of being granted as concluded herein above. 23. In view of the above discussion and conclusions, there is no merit and substance in this petition. 24. As a result, this petition is dismissed.