JUDGMENT : 1. Heard learned counsel for the petitioners and learned AGA for the State. 2. This petition has been filed with the following main prayer:- "Wherefore, it is most respectfully prayed that this Hon'ble Court may kindly be pleased to quash and set aside the impugned order dated 08/12/2021 passed on Application of the Petitioner, in Session Trial No. 46/2015, "State Vs. Vajid & Ors." pending before Learned Special Judge (POCSO Act)-12, Sultanpur, in Case Crime No. 5/2015, under sections 363, 366, 376D IPC read with 3/4 POCSO Act, PS Sangrampur, District Amethi, in the interest of justice, as contained in Annexure-1 to this Writ Petition. To stay the further proceeding in Session Trial No. 46/2015, "State Vs. Vajid & Ors." pending before Learned Special Judge (POCSO Act)-12, Sultanpur, in Case Crime No. 5/2015, under sections 363, 366, 376D IPC read with 3/4 POCSO Act, PS Sangrampur, District Amethi, during the pendency of this Petition before this Hon'ble Court in the interest of justice." 3. The petitioner is assailing the order dated 08.04.2021 passed in Sessions Trial No. 46 of 2015 in Case Crime No. 5 of 2015, by which the petitioners application for providing opportunity to cross-examine PW-4 (the victim) has been rejected by an unreasoned order. 4. It has been submitted that the father of opposite party no.2 lodged FIR on 08.01.2015, under Sections 363, 366 IPC, Police Station Sangrampur, District Amethi, against one Asif who alongwith the petitioner, (who was not named in the FIR) having enticed the respondent no.2 had taken her away. After investigation the Investigating Officer submitted a charge sheet against the petitioner and co-accused, Asif, under Sections 363, 366, 376 IPC read with Section 3/4 of the POCSO Act and cognizance was taken. Thereafter, the trial proceeded against the petitioner and co-accused. During trial on 15.11.2021, the statement of the PW-04, (respondent no.2) the victim was recorded. It was recorded that PW-04 had affirmed her own statement given under Section 164 of the Cr.P.C., but the statement under Section 164 Cr.P.C. in its original was lost. The order dated 02.12.2021 by the learned trial court has recorded that for the loss of the statement of under Section 164 Cr.P.C., and the negligence of the employee concerned, learned District Judge be informed. No action was taken however, against such irresponsible employee. 5. The order dated 02.12.2021 by the learned trial court has recorded that for the loss of the statement of under Section 164 Cr.P.C., and the negligence of the employee concerned, learned District Judge be informed. No action was taken however, against such irresponsible employee. 5. It has been argued that In the examination-in-chief of the respondent no.2, the respondent no.2 had placed reliance upon her statement under Section 164 Cr.P.C. Therefore, the petitioner through his counsel moved an application on 08.01.2021 and sought time for cross-examination as in the absence of statement of PW-4 under Section 164 Cr.P.C., no cross examination was possible. Learned trial court has rejected such application by an unreasoned order. The order dated 08.12.2021 is ex-parte and against the provision of Section 172 (2) and Section 294 of the Cr.P.C. 6. It has been argued that the statement of the respondent no.2 under Section 164 Cr.P.C. cannot be read as evidence because only a photo copy of the same is available. 7. Under Section 172 (2) any criminal court may send for police diary of a case under enquiry or trial in such court, and may use such diary, not as evidence in the case, but to aid it in such enquiry or trial. 8. It has been stated by the learned AGA for the State Ms. Shikha Sinha that under Section 161 Cr.P.C. the Investigating Officer records the statement of the witnesses including the victim. Under Section 164 of the Cr.P.C., the Magistrate having jurisdiction in the case records any confession or statement made to him in the course of an investigation or at any time afterwards, before commencement of the enquiry or trial. The Magistrate explains to the person making the statement that he is not bound to make a confession, but if he does so, it may be used as evidence against him. However, Sub-Sections (2), (3) and (4) of Section 164 of the Cr.P.C. are inapplicable in the case before this Court as this is not a question of a confession being made, but it is the question of a statement being made by the victim before the trial court before the commencement of the enquiry or trial. It has been pointed out that such a statement is kept in sealed cover and a copy of the same is given to the Investigating Officer to tag it alongwith the case diary. It has been pointed out that such a statement is kept in sealed cover and a copy of the same is given to the Investigating Officer to tag it alongwith the case diary. When the accused are summoned under Section 204 and they appear before the trial court, the trial court ensures that under Section 207 of the Cr.P.C. they are given copies of all documents relied upon by the Investigating Officer in filing the charge sheet. A copy of the case diary including statements under Sections 161 and 164 Cr.P.C. are also given and such copies being certified copies in possession of the accused, can always be used by the accused at the time of cross-examination of the witnesses. 9. This Court has considered also the various precedents of the Supreme Court. It is a settled law that a Statement recorded under section 164 is not a substantive piece of evidence of the facts stated but can be used to corroborate or contradict a witness. In State of Delhi vs. Shri Ram Lohia, AIR 1960 SC 490 , it was held that Statements recorded under Section 164 of the Code are not substantive evidence in a case and cannot be made use of except to corroborate or contradict the witness. An admission by a witness that a statement of his was recorded under Section 164 of the Code and that what he had stated there was true would not make the entire statement admissible much less that any part of it could be used as substantive evidence in the case. 10. In Utpal Das vs. State of West Bengal, AIR 2010 SC 1894 , it was held that a Statement recorded under Section 164 Cr.P.C. can never be used as substantive evidence of truth of the facts but may be used for contradictions and corroboration of a witness who made it. The statement made under Section 164 Cr.P.C. can be used to cross examine the maker of it and the result may be to show that the evidence of the witness is false. It can be used to impeach the credibility of the prosecution witness. 11. The statement made under Section 164 Cr.P.C. can be used to cross examine the maker of it and the result may be to show that the evidence of the witness is false. It can be used to impeach the credibility of the prosecution witness. 11. In R. Shaji Versus State of Kerala 2013 (14) SCC 266 , the Supreme Court was considering the evidentiary value of and the object of statements taken section 161 and 164 Cr.P.C. and whether the statements made thereunder can be regarded as substantive evidence. The appellant, R Shaji had argued that statements of certain witnesses were recorded under section 164 Cr.P.C. before the Magistrate. The said statements were not put on record before the trial court and the same were not marked. Thus the trial would vitiate as the accused has been denied an opportunity to contradict the aforementioned statements of the witnesses, which were made on appearance before the magistrate, which though are not in the nature of substantive evidence, could well be used for the purpose of corroboration and contradiction. Denial of such opportunity is against the requisites of a fair trial, The Supreme Court observed in paragraph 25 thus:- "clause (iv) of Section 207 Cr.P.C. clearly provides that any statement recorded under Section 164 Cr.P.C. shall be made available to the accused along with all the other documents that have been filed along with the chargesheet. The appellant herein has neither urged that the statements recorded under section 164 Cr.P.C. were not a part of such documents before the trial court, nor was any issue raised by him at the time of cross-examination of....., the investigating officer. The same is a question of fact. However, it appears from the documents on record that such documents, if the same were in fact a part of the record, were not marked. They raised this issue for the first time before the High Court, and the High Court dealt with the same observing:- "reading of the judgement of the court below shows that both sides referred to the same (the statement under Section164 Cr.P.C.), in detail and the court below has also referred to the same in its judgement. It is well settled that the statement under section 164 Cr.P.C. can be used both for corroboration and contradiction of the author of the statement and thus, the Court did not find this ground worth acceptance. It is well settled that the statement under section 164 Cr.P.C. can be used both for corroboration and contradiction of the author of the statement and thus, the Court did not find this ground worth acceptance. Even otherwise, it appears that statement recorded under section 164 Cr.P.C. by the magistrate was not in detail. No question had been put to the witnesses whose statements have been recorded nor an attempt had been made to extract answers from them nor the witnesses were asked by the learned magistrate what they wanted to say and they had no clue as to what they had to speak. Therefore, they simply spoke what came to their mind at that point of time whether it was relevant or irrelevant. The witnesses could not be deemed to carry so much of wisdom to enable them to know what are essential facts they need to state before the learned magistrate. The witnesses whose statements were recorded before. the magistrate were simply asked, "have you finished, you can go" The court observed further in paragraph 26 as follows:- "evidence given in a court under oath has a great sanctity, which is why the same is called substantive evidence. Statements under section 161 Cr.P.C. can be used only for the purpose of contradiction and statements under section 164 Cr.P.C. can be used for both corroboration and contradiction. In a case where magistrate has to perform the duty of recording her statement under section 164 Cr.P.C., he is under an obligation to elicit all information which the witness wishes to disclose, as a witness who may be an illiterate, rustic villager, will not be aware of the purpose for which he has been brought, and what he must disclose in a statement under section 164 Cr.P.C.. Hence, the magistrate should ask the witness explanatory questions and obtain all possible information in relation to the said case." Referring to the object of taking statements under In 164, the Supreme Court observed in paragraph 27 as follows : "so far as the statement of witnesses recorded under section 164 is concerned, The object is twofold; in the first phase, 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 warranted." (vide Jogendra Nahak Versus State of Orissa, 2000 (1) SCC 272 , CCE Versus Duncan Agro Industries Ltd. 2000 (7) SCC 53 ) Para 28.. "Section 157 of the Evidence Act makes it clear that a statement recorded under Section 164 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 Cr.P.C., such statements cannot be treated as substantive evidence." Para 29 "during the investigation the police Officer may sometimes feel that it is expedient to record the statement of a witness under section 164 Cr.P.C.. This usually happens when the witness to a crime are clearly connected to the accused, or where the accused is very influential, and to which witnesses may be influenced. (Vide Mamand Versus Emperor., AIR 1946 PC 45 , Bhuboni Sahu Versus R., AIR 1949 PC 257 Ramcharan Versus State of U.P., AIR 1968 SC 1473 Dhanabal Versus State of Tamil Nadu, 1980 (2) SCC 84 )." 12. This Court is of the considered opinion that a statement under Section 164 Cr.P.C. has no evidentiary value as such. The proving or disproving of which, shall weigh in the decision making of the learned trial court. It is only used as an aid in case during examination and cross-examination of witness in the trial by the learned trial court or by the accused. 13. This is evident from perusal of Section 172 (2) of the Code itself as it says that case diary is not to be used as evidence in a case, but an aid to such enquiry or trial. 14. Learned counsel for the petitioner has also pointed out Section 294 Cr.P.C. Section 294 is being quoted herein below:- "294. 13. This is evident from perusal of Section 172 (2) of the Code itself as it says that case diary is not to be used as evidence in a case, but an aid to such enquiry or trial. 14. Learned counsel for the petitioner has also pointed out Section 294 Cr.P.C. Section 294 is being quoted herein below:- "294. No formal proof of certain documents.--(1) Where any document is filed before any Court by the prosecution or the accused, the particulars of every such document shall be included in a list and the prosecution or the accused, as the case may be, or the pleader for the prosecution or the accused, if any, shall be called upon to admit or deny the genuineness of each such document. (2) The list of documents shall be in such form as be prescribed by the State Government. (3) Where the genuineness of any document is not disputed, such document may be read in evidence in inquiry, trial or other proceeding under this Code without proof of the signature of the person to whom it purports to be signed: Provided that the Court may, in its discretion, require such signature to be proved." 15. Ms. Shikha Sinha, Learned AGA for the State has argued that a perusal of Section 294 shows that it relates to documentary evidence, which is filed by either the prosecution or the accused in support of their respective case. Where the genuineness of any document is not disputed, such document may be read in evidence, in any enquiry, trial or otherwise, proceedings, without proof of the signature of the person to whom it purports to be signed but the Court may in its discretion require such signatures to be proved also. 16. Since the statement under Section 164 of the Cr.P.C. has only very limited evidentiary value and is required only in case, witnesses resile from such statement during the examination-in-chief or the cross-examination, it could not be treated as coming under documentary evidence under Section 294 of the Cr.P.C. 17. Learned counsel for the petitioner in his rejoinder affidavit has submitted that the Patna High Court in the Case of, 'Jai Prakash Singh vs. State of Bihar and Anr.' decided on 14.07.2006 reported in 2006 Criminal Law Journal 4245 has in a similar case showed interference. 18. Learned counsel for the petitioner in his rejoinder affidavit has submitted that the Patna High Court in the Case of, 'Jai Prakash Singh vs. State of Bihar and Anr.' decided on 14.07.2006 reported in 2006 Criminal Law Journal 4245 has in a similar case showed interference. 18. This Court has carefully perused the judgement of the Patna High Court, which has only a persuasive value and cannot be said to be a binding precedent for this Court; and finds that it relates to a case where a photo copy of an injury report being produced by the prosecution, the original injury report was not tagged along with the case diary. No notice was sent to the Investigating Officer for producing the original injury report. He, however, on his own sent a letter to the Superintendent of Police to the District stating that therein that the original injury report was not available in the record of the case at the Police Station. The prosecution wanted to prove the photocopy of the injury report and learned trial court allowed the application of the prosecution. The petitioner filed a petition under Section 482 Cr.P.C. challenging such order submitting that a photo copy of the injury report cannot be admitted as evidence. The Court considered the question "whether or not the photocopy of the injury report can be treated as secondary evidence?" and admitted as such under the circumstances of the case. The Patna High Court placed reliance upon the case of Ashok Dulichand vs. Madhavlal Dubey & Anr. 1975 (4) SCC 664 , where the Hon'ble Supreme Court had explained the circumstances under which a photocopy of a document can be admitted as evidence. For such admission as evidence, it has to be explained as to what were the circumstances under which the photocopy was prepared and who was in possession of the original document at that time when a photocopy was taken, and this should be above suspicion. The Court considered the circumstances of the particular case in Jay Prakash Singh (Supra) and the fact that the original injury report was not attached with the case diary at the very first instance. The prosecution was not able to satisfy the court the facts and circumstances regarding when the photocopy of the original injury report was prepared and under what circumstances. The prosecution was not able to satisfy the court the facts and circumstances regarding when the photocopy of the original injury report was prepared and under what circumstances. Therefore, the Court held that the photocopy of the injury report was not admissible in the evidence. 19. Learned counsel for the petitioner has placed reliance upon Section 65 of the Indian Evidence Act and Sub Clause (c) thereof and says that secondary evidence may be given of the existence, condition or contents of a document only when the original has been destroyed or lost or when the party offering evidence of its contents cannot, for any other reason not arising from his own default or neglect, produce it in reasonable time. 20. It has been submitted that the original statement under Section 164 Cr.P.C. of the victim was not produced by the prosecution and no reason for the same was also given, therefore, the photocopy of the 164 Cr.P.C. could not be treated as Secondary Evidence and could not be made admissible by the learned Trial Court. The argument regarding admissibility or otherwise of statement under Section 164 Cr.P.C. of the victim can only be considered at the time when the trial has concluded and while considering evidence, the Trial Court gives a finding that the witness/victim has resiled from her statement under Section 164 Cr.P.C. only then its original would be required to verify the contents thereof and to compare the same with the statement made in Examination-in-Chief and the admission if any made in the examination of such a victim. Hence this argument is also rejected as misconceived. 21. Having considered the arguments made by the learned counsel for the petitioner and learned AGA for the State and also the evidentiary value of a statement the Section 164 Cr.P.C., this Court finds no good ground to show interference in the order impugned dated 08.12.2021. 22. This Court finds from the perusal of the order that the learned trial court has recorded that the prosecution witness-04 (i.e. the victim) had been summoned and was returned twice and she lived out of station and a last opportunity had already been given for cross-examination which was not availed of by the accused. Such an order cannot be said to be an unreasoned order as argued by the learned counsel for the petitioner. 23. Accordingly, this petition stands rejected.