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2012 DIGILAW 321 (HP)

PREM CHAND JAIN v. STATE OF HIMACHAL PRADESH

2012-05-31

DHARAM CHAND CHAUDHARY, KURIAN JOSEPH

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JUDGMENT : Kurian Joseph, J. 1. Both the writ petitions essentially pertain to the same grievance and hence they are disposed of by a common judgment. 2. The petitioner in the former writ petition who has been allegedly examined under Section 161 Cr.P.C. in connection with the investigation of FIR No. 27 dated 3.8.2009 registered under Sections 13 (1)(d)(ii) read with Section 13 (2) of the Prevention of Corruption Act, 1988, by State Vigilance and Anti Corruption Bureau, Shimla, states that he has never given any statement as allegedly recorded as per Annexure P-2 nor has any one met him for recording such a statement. Therefore, the following prayers are made: "a. Issue an appropriate Writ, Order or Direction to order enquiry either by an independent agency or by a senior judicial authority into the facts and circumstances in which the statement attributed to the petitioner has been recorded; b. That the name of the petitioner be deleted from the list of witnesses and a declaration be issued that no such statement was actually made by him. c. That appropriate action be taken against the erring public servants who are shown to have subverted the process of investigation in case the enquiry so reveals." 3. The petitioner in the latter has a slight different version. According to him Annexure P-3, statement allegedly made by him is not what he stated to the police when he was examined. Therefore, the said petitioner has also made the same set of prayers, as extracted above. 4. Before adverting to the contentions raised by the parties, we feel it proper to analyse the legal position. Section 160 of the Cr.P.C. clothes the police officer with the power to examine any person in the course of investigation who appears to be acquainted with the facts and circumstances of the case. The provision reads as follows: "160. 4. Before adverting to the contentions raised by the parties, we feel it proper to analyse the legal position. Section 160 of the Cr.P.C. clothes the police officer with the power to examine any person in the course of investigation who appears to be acquainted with the facts and circumstances of the case. The provision reads as follows: "160. Police officers power to require attendance of witnesses: (1) Any police officer making an investigation under this Chapter may, by order in writing, require the attendance before himself of any person being within the limits of his own or any adjoining station who, from the information given or otherwise, appears to be acquainted with the facts and circumstances of the case; and such person shall attend as so required: Provided that no male person under the age of fifteen years or woman shall be required to attend at any place other than the place in which such male person or woman resides. (2) The State Government may, by rules made in this behalf, provide for the payment by the police officer of the reasonable expenses of every person, attending under sub-section (1) at any place other than his residence." 5. Section 161 of the Cr. P.C. provides for the procedure of examination by the police. The provision reads as follows: "161. Examination of witnesses by police: (1) Any police officer making an investigation under this Chapter, or any police officer not below such rank as the State Government may, by general or special order, prescribe in this behalf, acting on the requisition of such officer, may examine orally any person supposed to be acquainted with the facts and circumstances of the case. (2) Such person shall be bound to answer truly all questions relating to such case put to him by such officer, other than questions the answers to which would have a tendency to expose him to a criminal charge or to a penalty or forfeiture. (3) The police officer may reduce into writing any statement made to him in the course of an examination under this section and if he does so, he shall make a separate and true record of the statement of each such person whose statement he records: Provided that statement made under this sub-section may also be recorded by audio-video electronic means." 6. It may be seen that under Section 161 (2) Cr.P.C. any person thus examined by the police under section 161 is duty bound to answer truly all questions put to him by the police officer relating to the case under investigation by him. However, there is a caveat; he can refuse to answer any question, the answer to which would have a tendency to expose him to a criminal charge or to a penalty or forfeiture. Thus, a person examined under Section 161 Cr. P.C. though according to the police is acquainted with the facts of the case can refuse to answer any question which might even remotely tend to expose him to any penalty, charge or forfeiture. It is the mandate under Section 161 (3) Cr.P.C. that the statement recorded by the police officer shall be a true record of the statement of such person. In other words, the version or impression of the investigating officer at the time of examination is not to be recorded in the statement under Section 161 Cr.P.C. What is to be recorded is only the statement of the witnesses examined by the police officer and hence the mandate " true record of statement." 7. Section 162 of the Cr.P.C. provides that no statement shall be signed by the person making it and it also provides for the use to which the statement can be put in the course of inquiry or trial. The provision reads as follows: "162. Section 162 of the Cr.P.C. provides that no statement shall be signed by the person making it and it also provides for the use to which the statement can be put in the course of inquiry or trial. The provision reads as follows: "162. Statements to police not to be signed - Use of statements in evidence: (1) No statement made by any person to a police officer in the course of an investigation under this Chapter, shall, if reduced to writing, be signed by the person making it; nor shall any such statement or any record thereof, whether in a police diary or otherwise, or any part of such statement or record, be used for any purpose, save as hereafter provided, at any inquiry or trial in respect of any offence under investigation at the time when such statement was made: Provided that when any witness is called for the prosecution in such inquiry or trial whose statement has been reduced into writing as aforesaid, any part of his statement, if duly proved, may be used by the accused, and with the permission of the Court, by the prosecution, to contradict such witness in the manner provided by section 145 of the Indian Evidence Act, 1872 (1 of 1872); and when any part of such statement is so used, any part thereof may also be used in the re-examination of such witness, but for the purpose only of explaining any matter referred to in his cross-examination. (2) Nothing in this section shall be deemed to apply to any statement falling within the provisions of clause (1) of section 32 of the Indian Evidence Act, 1872 (1 of 1872), or to affect the provisions of section 27 of that Act." 8. Thus, it is statutorily made clear that the statement of witness before the investigating officer cannot be used as evidence. This aspect has also been dealt with by the Apex Court in detail in Ram Prasad v. State of Maharashtra, reported in AIR 1999 SC 1969 . It is only that part of the statement, if duly proved, which may be used by the accused and with the permission of the Court by the prosecution to contradict the witness concerned in the manner provided under Section 145 of the Indian Evidence Act. It is only that part of the statement, if duly proved, which may be used by the accused and with the permission of the Court by the prosecution to contradict the witness concerned in the manner provided under Section 145 of the Indian Evidence Act. In other words, the statement by a witness before the police officer under section 161 Cr.P.C. cannot be used by the Court at the stage of inquiry or trial of any offence for any purpose other than the purpose stated above. Therefore, at the outset, we may make it clear that there is no basis for the apprehension of the petitioners and more particularly the petitioner in CWP No. 145 of 2011 that the statements made by them under Section 161 Cr.P.C. would be the basis for steps under Section 319 of the Cr.P.C. For the purpose of ready reference, we may extract Section 319 Cr.P.C as well: "319. Power to proceed against other persons appearing to be guilty of offence: (1) Where, in the course of any inquiry into, or trial of, an offence, it appears from the evidence that any person not being the accused has committed any offence for which such person could be tried together with the accused, the Court may proceed against such person for the offence which he appears to have committed. (2) Where such person is not attending the Court, he may be arrested or summoned, as the circumstances of the case may require, for the purpose aforesaid. (3) Any person attending the Court although not under arrest or upon a summons, may be detained by such Court for the purpose of the inquiry into, or trail of, the offence which he appears to have committed. (4) Where the Court proceeds against any person under sub-section (1), then (a) the proceedings in respect of such person shall be commenced afresh, and witnesses re-heard; (b) subject to the provisions of clause (a), the case may proceed as if such person had been an accused person when the Court took cognizance of the offence upon which the inquiry or trial was commenced." 9. It can be clearly seen that any person can be proceeded under Section 319 Cr.P.C. only in case he appears to be guilty of the offence from the evidence recorded in the course of inquiry or trial. It can be clearly seen that any person can be proceeded under Section 319 Cr.P.C. only in case he appears to be guilty of the offence from the evidence recorded in the course of inquiry or trial. Since the statement under Section 161 Cr.P.C. is not evidence, based on that statement no person can be arraigned as additional accused under Section 319 Cr.P.C. It should appear to the Court from the evidence recorded during inquiry or trial and then only, any step under Section 319 Cr.P.C. can be initiated. It is seen that in this case during the stage of inquiry so far, both the petitioners have not been examined in the Court. Therefore, their statement allegedly recorded under Section 161 Cr.P.C. by the investigating officer cannot be used for any purpose at the stage of inquiry or trial, except for the limited use as provided under the proviso to Section 162 (2), which we have already referred to above. 10. Having referred to the legal position as above, we shall now advert to the factual matrix. According to the petitioner in CWP No. 145 of 2011, Sh. Jain, has held high positions in Gujarat Ambuja Cement, including the post of Vice President of the Company during 1988-89 and he was incharge of Darlaghat Plant of the Company during 1995. He is a highly responsible, socially conscious and morally upright person presently aged 82 years. He is said to have read news item in the newspaper dated 18.12.2010, wherein his statement had been reproduced verbatim and it was shockingly realised by him that the statement as recorded was false and fabricated. No doubt, there are incriminating statements in Annexure P-2. Whether a person of the stature of the petitioner would have given such a self incriminating statement is the question posed by the petitioner for strengthening his contention that the same is false and fabricated. It is stated at paragraph 5 of the writ petition as follows: "5. It is pertinent to show that the address of the petitioner in the statement has been given of Muzaffar Nagar Uttar Pradesh whereas the petitioner is presently residing at D II/2322, Vasant Kunj, New Delhi since 1998. It is stated at paragraph 5 of the writ petition as follows: "5. It is pertinent to show that the address of the petitioner in the statement has been given of Muzaffar Nagar Uttar Pradesh whereas the petitioner is presently residing at D II/2322, Vasant Kunj, New Delhi since 1998. It is further pertinent to mention that respondent No. 2 came to meet the petitioner at Delhi on 25/3/2010 and pressurised the petitioner to give a statement under Section 161 of the Code of Criminal Procedure Code in FIR No. 27 dated 3.8.2009. The petitioner categorically informed and updated respondent No. 2 with regard to his service and functioning with Gujarat Ambuja Cement till his retirement in the year 2000 which apparently forms the first paragraph of the alleged statement under Section 161 of the Code of Criminal Procedure. No other questions were put to petitioner No. 2 nor were the issues wrecked up in the substantive part of the statement even casually discussed." 11. Inviting reference to the decision of the Supreme Court in P. Sirajuddin vs. State of Madras, 1970 (1) SCC 595 , it is submitted by the learned senior counsel for the petitioners that the procedure adopted for investigation in this case is unprecedented and outrageous as to shock ones sense of justice and fair play and hence appropriate directions may be issued not to call the petitioners as witnesses on the basis of the alleged statement under Section 161 Cr.P.C. It is pointed out that in the said case the High Court had issued a direction to exclude the incriminating statements, recorded under Section 161 Cr.P.C. which have been found to be vitiated by the Court and that the said decision has been upheld by the Apex Court in the case cited above. 12. What is the remedy available to a witness, the moment he comes to know of certain untrue statements as attributed to him in the Section 161 Cr.P.C. statement is the question. In terms of the statement recorded during investigation by the police, naturally, he would be made a prosecution witness by the police. He would get, if examined either at the stage of inquiry or at the stage of the trial, ample opportunity to state before the trial Court his version. In terms of the statement recorded during investigation by the police, naturally, he would be made a prosecution witness by the police. He would get, if examined either at the stage of inquiry or at the stage of the trial, ample opportunity to state before the trial Court his version. It would also be open to such person, on coming to know of the alleged false and fabricated statement recorded as 161 Cr.P.C., to bring the same to the notice of the officer superior to the investigating officer, since according to him there is neither any proper or honest investigation and that the investigation is conducted in a dishonest manner, in which case, it will be always open to the superior police officer to look into the matter for appropriate further action in the matter in view of his power under Section 36 Cr.P.C. before the final report, or thereafter for invoking the power of police for further investigation under Section 173 (8) Cr.P.C In Sakiri Vasu v. State of Uttar Pradesh & others, (2008) 2 SCC 409 , at paragraph-15, it has been held by the apex Court as follows: "15. Section 156 (3) provides for a check by the Magistrate on the police performing its duties under Chapter XII CrPC. In cases where the Magistrate finds that the police has not done its duty of investigating the case at all, or has not done it satisfactorily, he can issue a direction to the police to do the investigation properly, and can monitor the same." 13. We may also refer to the eloquent observation made by the Apex Court in Sirajuddins case (supra) with regard to the need for fair investigation made after referring to the scheme of investigation under the Cr.P.C. To quote, Para 19: "19. All the above provisions of the Code are aimed at securing a fair investigation into the facts and circumstances of the criminal case, however serious the crime and however incriminating the circumstances may be against a person supposed to be guilty of a crime the Code of Criminal Procedure aims at securing a conviction if it can be had by the use of utmost fairness on the part of the officers investigating into the crime before the lodging of a charge-sheet. Clearly the idea is that no one should be put to the harassment of a criminal trial unless there are good and substantial reasons for holding it." Therefore, it will also be open to such a witness to bring the matters to the notice of the trial Court also for appropriate further action. In this case we are informed that final report (challan) has already been filed. The request made by the petitioner is for an inquiry by this Court. We are afraid, at this stage, it will not be proper for this Court to inquire into such matters. In Sirajuddins case, the petition was at the instance of the accused and the stage was also different, apart from the difference on the factual matrix. It was a case where statement under Section 161 Cr.P.C. of the witnesses were recorded with their signatures and on the promise of immunity from prosecution and thereby inducing them even to make incriminating statements. 14. There is also a prayer made by the petitioner for a direction for recording the statement under Section 164 of the Cr.P.C. For ready reference, we may extract the provision: "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 any investigation under this Chapter or under any other law for the time being in force, or at the time afterwards before the commencement of the inquiry or trial: Provided that any confession or statement made under this sub-section may also be recorded by audio-video electronic means in the presence of the advocate of the person accused of an offence: Provided further 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. (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 so, 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 has 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 this 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. (Signed) A.B. Magistrate." (5) Any statement (other than a confession) made under subsection (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." 15. The scheme of investigation under Cr.P.C. would show that it is for the investigating officer to decide as to whose statement should be recorded and in what manner it should be recorded. No Court can direct the investigating officer to record a statement of witness under Section 164 Cr.P.C. It is the discretion and jurisdiction wholly of the investigating officer. This aspect has been considered by the Supreme Court in Jogindra Nahak and others v. State of Orissa & others, AIR 1999 SC 2565 . To quote from the headnote: "Section 164 (1) cannot be interpreted as empowering a Magistrate to record the statement of a person un-sponsored by the investigating agency. This aspect has been considered by the Supreme Court in Jogindra Nahak and others v. State of Orissa & others, AIR 1999 SC 2565 . To quote from the headnote: "Section 164 (1) cannot be interpreted as empowering a Magistrate to record the statement of a person un-sponsored by the investigating agency. The fact 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 164 of the Code. Even for such witness 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) there is no special reason why the Magistrate should be burdened 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 statement under Section 164 of the Code. On the other hand, if door is opened to such persons to get in and if the Magistrate 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." 16. Whether a witness can request the police officer to sponsor him to record his statement under Section 164 Cr.P.C. is yet another question. Having regard to the procedural scheme of the investigation, it is open to the witness to make a request to the police officer for recording his statement under Section 164 Cr.P.C. and it is for the police officer to take a decision, having regard to the facts and circumstances of the each case as to whether the statement should be got recorded under Section 164 Cr.P.C. or not. 17. 17. In the instant case, the petitioner in CWP No. 145 of 2011 has not given any complaint to the superior officer of the investigating officer with regard to the alleged false and fabricated statement recorded under Section 161 Cr.P.C. He had also not given any request to the police officer to sponsor him for recording his statement under Section 164 Cr.P.C. Therefore, we need not go into those aspects at this stage. 18. As far as Sh. Kapil Mohan-petitioner in CWP No. 1856 of 2011 is concerned, it is stated in the writ petition that he is the Managing Director of a well reputed business concern namely Mohan Meakin Limited. He has served the Indian Army and retired as Brigadier and was honored with Vashisht Sewa Medal for his dynamic and selfless services rendered as officer of Indian Armed Forces. In due recognition of his services rendered to the nation, he was also honoured by the Country with Padamshree award in the year 2010. According to him, he came to know of the alleged statement attributed to him only from the newspaper published on 18.12.2010 and thereafter alleged statement under Section 161 Cr.P.C. was obtained which is Annexure P-2. All that what we have stated above, would apply in equal force to his case as well. The only difference is that according to him, he has never been examined by any police officer nor has he stated anything to the police. That is something to be verified by the trial Court at the appropriate stage either of inquiry or of trial including as to whether he had been given any notice under Section 160 Cr.P.C. and whether the case diary would otherwise show that the police officer had otherwise travelled to his place and examined him. As in the case of the petitioner in CWP No. 145 of 2011, it is open to the petitioner in this case also to bring these matters to the notice of the superior police officer. Equally, it is also for him to make a request to the investigating officer to sponsor him for recording his statement under Section 164 Cr.P.C. in case there is any further investigation, in which case, the investigating officer will look into the same and take appropriate action. Equally, it is also for him to make a request to the investigating officer to sponsor him for recording his statement under Section 164 Cr.P.C. in case there is any further investigation, in which case, the investigating officer will look into the same and take appropriate action. Other than what we have stated above, under the scheme of Cr.P.C. no other relief at this stage can be given by this Court. The Writ Petitions are accordingly disposed of, as above, so also the pending application(s), if any