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2018 DIGILAW 3884 (MAD)

K. Sathishkumar v. State

2018-10-23

N.ANAND VENKATESH

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JUDGMENT N.ANAND VENKATESH, J. 1. This criminal original petition has been filed seeking to withdraw the case in Spl. CC No.25 of 2018 on the file of the Principal District and Sessions Court, Ramanathapuram and transfer the case to any other Court. 2. The petitioner is arrayed as A-4. It is seen from records that the respondent Police have registered an FIR against six accused persons in Crime No.06 of 2018 for the alleged offence under Section 366 of IPC and Section 5(g), 6, 16, 17 of the Protection of Children From Sexual Offence Act, 2012. The respondent Police after completion of the investigation, filed a final report before the Special Court and charges were framed against all the accused persons for the offence under Sections 366 and 366(A) of IPC and Section 5(g), 6, 16, and 17 of the POSCO Act. After framing of the charges, the case is at the stage of trial. At this point of time, the petitioner has filed this transfer application on the sole ground that the Special Judge, before whom the case is now pending for trial, had recorded 164 statement of the victim. The other ground that has been raised by the petitioner is that the Special Judge has also been shown as a witness in the list of witnesses filed along with the final report. Therefore, according to the petitioner, the Special Judge before whom the case is pending should not conduct the trial and the petitioner will not be able to get a fair justice before the learned Judge. 3. This Court had called for a report from the Principal District and Sessions Judge, Ramanathapuram, who is also a Special Judge, dealing with the offences under POCSO Act. The learned Judge, has submitted a report before this Court to the effect that the Special Judge is entitled to record the statement of the witness under Section 164 of Cr.P.C. in view of the judgment of this Court in Murugusamy Vs State, reported in, 2017 3 MWN(Cri) 77. The learned Judge has also stated in the report that this Court has already directed the Court below to complete the proceedings within a period of three months and the case is at the stage of trial? 4. The learned Judge has also stated in the report that this Court has already directed the Court below to complete the proceedings within a period of three months and the case is at the stage of trial? 4. The important question that has arisen for consideration before this Court is as to whether the jurisdictional Court, which conducts the trial in a case, can also be the same Court, which took statement/confession from any witness or accused and whether the Court becomes disentitled to try the case where the said Court had recorded statement under Section 164 of Cr.P.C.? 5. Before venturing into this question, this Court expresses its displeasure in the manner in which the Police have cited the Judge, who has recorded 164 statement, as a witnesses in the final report. This Court has time and again directed the Police not to include the Judge as a witness just because the Judge had recorded the statement under Section 164 of Cr.P.C.. Useful reliance can be placed by this Court on the judgment of a Division Bench of this Court in R. Murugesan Vs. State, reported in, (2014) 1 LW(Cri) 339. This Court has categorically held that the Magistrate recording the statement under Section 164 of Cr.P.C. need not be examined as a witness. The Division Bench also expressed its displeasure in the manner in which the Magistrates are added as witnesses in the final report and this Court reposed confidence that the situation would improve as time progresses. However, unfortunately, the same mistake continues to be perpetrated by the Police by showing the Judge/Magistrate who recorded the statement under Section 164 of Cr.P.C., as a witness in a case. 6. The Police is expected to comply with the judgment of the Hon'ble Division Bench referred to supra. The Police cannot repeat the same mistake again and again. At least while the final report is finally settled by the Public Prosecutor concerned, these mistakes can be easily avoided. 7. In this case, even though the learned Special Judge has been shown as LW.32 in the list of witnesses, the same has to be eschewed in view of the Division Bench judgment of this Court referred supra. The learned Judge need not be examined as a witness for the purpose of marking 164 statement. 7. In this case, even though the learned Special Judge has been shown as LW.32 in the list of witnesses, the same has to be eschewed in view of the Division Bench judgment of this Court referred supra. The learned Judge need not be examined as a witness for the purpose of marking 164 statement. The 164 statement recorded by a Magistrate is a public document within the meaning of Section 174 (1) (iii) of the Evidence Act and it is not a substantive piece of evidence. The statements made under Section 164 of Cr.P.C. are available to the defence for contradicting the witness. The statement recorded under Section 164 of Cr.P.C. can very well be marked through the Investigating Officer at the time of trial. Therefore, this Court is of the considered view that just because the Special Judge has been shown as a witness, that does not create a ground for the petitioner to seek for the transfer of the case. In view of the same, the name of the learned Judge shown as a witness in the list of witnesses is hereby eschewed and the 164 statement shall be marked through the Investigating Officer. 8. It has to be borne in mind that the Indian Evidence Act, 1872 itself provides an answer for this question. Section 121 of the Evidence Act, which falls under Chapter -IX, deals with the witnesses who can testify before the Court. Section 121 reads as follows: "121.Judges and Magistrates:-No Judge or Magistrate shall, except upon the special order of some Court to which he his subordinate, be compelled to answer any questions as to his own conduct in Court as such Judge or Magistrate, or as to anything which came to his knowledge in Court as such Judge or Magistrate; but he may be examined as to other matters which occurred in his presence whilst he was so acting. Illustrations (a) A, on his trial before the Court of Session, says that a deposition was improperly taken by B, the Magistrate. B cannot be compelled to answer questions as to this, except upon the special order of a superior Court. (b)A is accused before the Court of Session of having given false evidence before B, A Magistrate. B Cannot be asked what A said, except upon the special order of the superior Court. B cannot be compelled to answer questions as to this, except upon the special order of a superior Court. (b)A is accused before the Court of Session of having given false evidence before B, A Magistrate. B Cannot be asked what A said, except upon the special order of the superior Court. (c)A is accused before the Court of Session of an attempting to murder a Police officer whilst on his trial before B, a Sessions Judge. B may be examined as to what occurred." 9. A reading of the above provision makes it clear that a Judge or Magistrate can be examined before the Court only with regard to matters which occurred in his presence while he was so acting as a Judge or Magistrate. The illustrations that have been provided under Section 121 of Evidence Act, clearly explains the manner in which, a Judge or a Magistrate can be examined upon a special order passed by a Superior Court. This provision has also been lost sight of by the prosecution for a long number of years and this Court only hopes that going forward, this mistake of adding the Judges and Magistrates as witnesses, just because they recorded 164 statement, does not continue. 10. The next important question that has to be answered by this Court is as to whether, the Judge who tries the case becomes disentitled only by virtue of recording 164 statement from a witness? 11. The Judge or the Magistrate who records 164 statement at the best is only a recording machine. Except for the minimum requirements to be satisfied under Section 164 of Cr.P.C. before recording the statement, the Judge or the Magistrate cannot even put questions to the witness, who is giving statement under Section 164 of Cr.P.C.. While recording statement under Section 164 of Cr.P.C., Section 165 of the Indian Evidence Act, will not come into operation. The statement taken by a Magistrate or a Judge at the best is only in the nature of former statement which can be used by the defence for contradiction and can be used by the prosecution for corroboration. 12. The opening words of Section 164 itself provides answer to the questions raised before this Court. The statement taken by a Magistrate or a Judge at the best is only in the nature of former statement which can be used by the defence for contradiction and can be used by the prosecution for corroboration. 12. The opening words of Section 164 itself provides answer to the questions raised before this Court. Section 164 of Cr.P.C. starts with the word 'any Metropolitan Magistrate or Judicial Magistrate may, whether or not he has jurisdiction in the case ...' Therefore, Section 164 of Cr.P.C. itself does not restrict the jurisdictional Magistrate to record the statement under Section 164 of Cr.P.C.. 13. It is therefore, clear that nowhere in the Criminal Procedure Code, there is a bar for the Court or the Magistrate to take the final report on file and conduct the trial, even though the concerned Magistrate has recorded the statement of the witness under Section 164 of Cr.P.C.. In fact, the Court or Magistrate, at the time of appreciating the evidence, will have a better opportunity to assess the credibility of the statement made by the witness. It can never be said that the Magistrate who recorded the statement under Section 164 of Cr.P.C. will sit with a prejudiced mind while he conducts the trial in the same case. 14. The Division Bench judgment which has been referred to supra also dealt with the scope of the Special Court to record the statement of the victim under Section 164 of Cr.P.C., in all cases covered under the POCSO Act. The relevant portions of the judgment is extracted hereunder: '44. In the light of our discussions in paragraph Nos. 39 to 43 above, we hold that the expression "he has jurisdiction in the case" referring to a Metropolitan Magistrate or Judicial Magistrate under Section 164(1) of the Code, would also include Special Judges, who have been vested with the power to take cognizance of an offence without there being a need for committal under certain special enactments such as the Prevention of Corruption Act, 1988, the POCSO Act, Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989, the NDPS Act, 1985, the Unlawful Activities (Prevention) Act, 1967, etc. 45. 45. A fortiori, it does not mean that the Metropolitan Magistrate or Judicial Magistrate who has no jurisdiction to inquire into or try a case cannot record a statement under Section 164(1) Cr.P.C. in respect of cases falling under the special enactments. The Metropolitan Magistrate/Judicial Magistrate who does not have jurisdiction under the special enactments may also record a statement of a witness under Section 164(1) Cr.P.C. at the request of the investigating agency. This is in consonance with the provisions of Section 164(1) Cr.P.C. and would also serve the mandate of the Supreme Court in Shivanna (supra), wherein, the Investigating Officers have been directed to record the statement of victims in rape cases within 24 hours. Thus, henceforth, the investigating agency need not approach the CJM/CMM with an application for nominating a Magistrate to record the 164(5) Cr.P.C. statement of a witness in a case. Similarly, the Special Courts constituted under various enactments need not forward such requests to the CMM/CJM for nominating a Magistrate to record the statement of a witness under Section 164(5) of the Code as they can record the same, themselves.' 15. Therefore, it is made clear from the above, that the Special Court has been empowered to record the statement of the victim / witness under Section 164 of Cr.P.C. at the request made by the Investigating Officer. The Court below has merely followed the dictum of this Court and has proceeded to record the statement of the victim under Section 164 of Cr.P.C.. This Court does not find any illegality in the procedure adopted by the Court below. 16. In view of the above, the grounds raised by the petitioner seeking for transfer of the case pending before the Special Court is unsustainable. This Court does not find any merits in this petition and accordingly, this criminal original petition is dismissed. Consequently, CrlMP(MD)No.7969 of 2018 is closed.