Karnataka High Court
Dr. Shivamurthymurugha Sharanaru vs State Of Karnataka on 13 September, 2024
Author: M.Nagaprasanna
Bench: M.Nagaprasanna
1
Reserved on : 07.08.2024 R
Pronounced on : 13.09.2024
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 13TH DAY OF SEPTEMBER, 2024
BEFORE
THE HON'BLE MR. JUSTICE M. NAGAPRASANNA
CRIMINAL PETITION No.7330 OF 2024
BETWEEN:
DR. SHIVAMURTHY MURUGHA SHARANARU
S/O LATE GURUMURTHY
AGED ABOUT 66 YEARS
PEETADHYAKSHARU,
MURUGHA RAJENDRA BRUHANMUT
CHITRADURGA
KARNATAKA - 577 502
(IN JUDICIAL CUSTODY)
PERMANENT R/O GUDABANULU VILLAGE
CHITRADURGA DISTRICT.
... PETITIONER
(BY SRI C.V.NAGESH, SR. ADVOCATE FOR
SRI K.B.K.SWAMY, ADVOCATE)
AND:
1. STATE OF KARNATAKA
BY CHITRADURGA
RURAL POLICE STATION
CHITRADURGA - 577 502
REPRESENTED BY
STATE PUBLIC PROSECUTOR
2
HIGH COURT OF KARNATAKA
BENGALURU - 560 001.
2. CHANDRAKUMAR C.,
S/O CHAJJEGOWDA
AGED ABOUT 42 YEARS
LEGAL CUM PROBATION OFFICER
DISTRICT CHILD PROTECTION UNIT
NO.CA-15-17, ANJANADRI MAIN ROAD
4TH STAGE, 2ND BLOCK, VIJAYANAGARA
MYSURU - 560 032.
... RESPONDENTS
(BY SRI B.N.JAGADEESHA, ADDL. SPP)
THIS CRIMINAL PETITION IS FILED UNDER SECTION 482 OF
CR.P.C., PRAYING TO REDACT / EXPUNGE THE PORTION OF THE
DEPOSITION OF PW.1 RECORDED ON 01.07.2024 VIDE ANNEXURE-
C, IN SPL.C.(POCSO) NO.181/2022 (CR.NO.387/2022), PENDING
TRIAL FOR THE CHARGES U/S 376(2)(n), 376(3), 504 OF IPC AND
SEC. 5(L) AND 6 OF POCSO ACT, PENDING ON THE FILE OF
HON'BLE II ADDL. DIST. AND SESSIONS JUDGE, AT
CHITRADURGA, REGISTERED BY CHITRADURGA RURAL POLICE
STATION, CHITRADURGA.
THIS CRIMINAL PETITION HAVING BEEN HEARD AND
RESERVED FOR ORDERS ON 07.08.2024, COMING ON FOR
PRONOUNCEMENT THIS DAY, THE COURT MADE THE FOLLOWING:-
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CORAM: THE HON'BLE MR JUSTICE M.NAGAPRASANNA
CAV ORDER
The petitioner/accused No.1 is before this Court seeking a
strange prayer of expunging/redacting a portion of the deposition of
PW-1 recorded on 01-07-2024 in Special Case (POCSO) No.181 of
2022 pending before the II Additional District and Sessions Judge,
Chitradurga.
2. Facts in brief, necessary for introduction to the case are:
A crime comes to be registered in Crime No.387 of 2022 for
offences punishable under Section 376(2)(n), 376(3), 149 of the
IPC and under Sections 17, 5(L), and 6 of the Protection of Children
from Sexual Offences Act, 2012 ('POCSO Act' for short). On
completion of investigation the police file a charge sheet on 25-10-
2022 for offences punishable under Sections 376(2)(n), 376(DA),
376(3), 201, 202, 506 r/w 34 and 37 of the IPC, Sections 17, 5(L),
and 6 of the Protection of Children from Sexual Offences Act, 2012
('POCSO Act' for short), Sections 3(f) and 7 of the Religious
Institution Prevention of Misuse Act, 1988, Section 75 of the
4
Juvenile Justice (Care and Protection of Children) Act, 2015 and
Section 3(1)(w)(i)(ii), 3(2)(v)(v-a) of the SC/ST Act, 1989. On
31-05-2024 the concerned Court frames charges in accordance with
the order passed by this Court. The facts anterior to the impugned
proceedings need not be narrated as they are not relevant for
consideration of the issue in the lis. On 10-06-2024 the concerned
Court examines CW-2 as PW-1. On 20-06-2024 the concerned
Court hears on marking of statement of PW-1 under Section 164
Cr.P.C. On 21-06-2024 the concerned Court passes an order that
statements recorded under Section 164(5) of the Cr.P.C. cannot be
marked in examination-in-chief of the witnesses as it can only be
used for contradiction or corroboration at the time of cross-
examination. The examination continued. On 01-07-2024 it
appears that the witness says about what she has spoken before
the Magistrate while rendering the statement under Section 164(5)
of the Cr.P.C. Contending that it is indirectly marking the statement
rendered under Section 164 of the Cr.P.C., the petitioner/accused
No.1 is again at the doors of this Court.
5
3. Heard Sri C.V.Nagesh, learned senior counsel appearing for
the petitioner and Sri B.N. Jagadeesha, learned Special Public
Prosecutor appearing for the respondents.
4. The learned senior counsel would vehemently contend that
marking of a statement rendered by the witness under Section 164
is impermissible in law. He would contend that what cannot be
done directly cannot be permitted to be done indirectly by even
questioning the witness/PW-1 regarding the statement that was
rendered under Section 164(5) of the Cr.P.C. This procedure will
result in failure of justice and therefore the subject prayer is
sought. He would place reliance upon certain judgments rendered
by the Apex Court, this Court and other High Court which will all
bear consideration qua their relevance in the course of the order.
5. Per contra, the learned Additional State Public Prosecutor
would contend that marking of Section 164 statement is not barred
in law. The concerned Court has passed an order that Section 164
statement cannot be marked. That would not mean the contents of
Section 164 statement cannot be used in the cross-examination for
6
contradiction or corroboration. He would contend that it is only a
ruse to drag on the proceedings. He would seek dismissal of the
petition in the light of the Apex court directing conclusion of trial as
expeditiously as possible.
6. I have given my anxious consideration to the submissions
made by the respective learned counsel and have perused the
material on record.
7. The issue that is now brought before the Court lies in a
narrow compass. The issue is whether the evidence that is recorded
on 1-07-2024 is in tune or contrary to law. When the statement
under Section 164(5) of the Cr.P.C., of PW-1/CW-2 was sought to
be recorded it was objected to by the defence. The objection led to
the concerned Court passing an order. The order reads as follows:
"R E A S O N S
6. POINT No.1:-Section 164(5) of Cr.P.C reads as under:-
"Any statement (other than a confession)
made under Sub-Section (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
7
administer oath to the person whose statement is
so recorded.
7. Sub Section(1) reads as under:-
"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 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.
Section 164 of Cr.P.C states about the recording
confession or statement by the Judicial Magistrate.
8. The learned Spl. Public Prosecutor has argued that the
statement given before the Magistrate has to be marked in its
entirety.
9. The advocate for the accused has argued that the
statement recorded under Section 164 of Cr.P.C cannot be
marked in its entirety. He has argued that the statement
recorded under Section 164 of Cr.P.C is a previous statement
recorded during pendency of the investigation. The statement
under Sections 161 and 164 of Cr.P.C are not considered as
substantive piece of evidence. The statement recorded under
Section 164 of Cr.P.C can be used for cross examination as to
previous statement made by him and such previous statement
can be used only for the purpose of contradiction in the course
of cross-examination. The statement recorded under Section
164 of Cr.P.C cannot be used as a corroborative piece of
evidence. Marking the entire statement recorded under Section
164 of Cr.P.C as exhibit would be erroneous and the evidence
Act does not permit such a mode of proof of any fact. If it is
marked it would cause immense prejudice to the defence of the
accused and it would result in manifest justice. Hence, he prays
not to mark the entire statement of the witnesses under Section
164 of Cr.P.C. as exhibit.
8
10. The advocate of the accused has furnished the
decision reported in ILR 2021 KAR 3469 between
Hanumantha Mogaveera Vs. State of Karnataka, wherein
the Hon'ble High Court has held that the statement recorded
under Section 164 of Cr.P.C cannot be considered to be
evidence under Section 35 of POCSO ACT. In the said judgment
at para No.25 it is held that recording of statement under
Section 164 of Cr.P.C being prior to the commencement of trial
it cannot be considered to be evidence Sub Section (1) of
Section 35 of POCSO ACT. In para No.37 wherein it has been
observed that Statement under Section 164 of Cr.P.C cannot be
treated as substantive evidence of facts stated. Such a
statement can be used to discredit the evidence of the witness
but not for any other purpose.
11. In para No.29 of Hon'ble High Court of Karnataka
has citied the decision of Ramkishan Sigh Vs. Harmith
Kaur and other, wherein Hon'ble Supreme Court opined
that the statement under Section 164 of Cr.P.C is not a
substantive evidence. It could be used to corroborate statement
of witness or to contradict a witness.
12. He has also furnished the decision of Hon'ble High
Court of Karnataka reported in ILR 2006 KAR 4623
between T. Diwakara and others Vs. State of Karnataka,
wherein the Hon'ble High Court has held that, statement
recorded under Section 164 of Cr.P.C. does not have any better
legal status than the one recorded under Section 161(3) of
Cr.P.C.
13. He has also furnished the decision of Hon'ble
Supreme Court of India reported (2020) 7 SCC 722 between
Somasundaram @ Somu Vs. State represented by its
Deputy Commissioner of Police, wherein the Hon'ble
Supreme Court has stated as under:
81. Section 164 of Cr.P.C enables the recording
of the statement or confession before the Magistrate.
Is such statement substantive evidence? What is the
purpose of recording the statement or confession
under Section 164? What would be the position if the
9
person giving the statement resiles from the same
completely when he is examined as a witness? These
questions are not resintegra. Ordinarily, the
prosecution which is conducted through the State and
the police machinery would have custody of the
person. Though, Section 164 does provide for
safeguards to ensure that the statement or a
confession is a voluntary affairs it may turn out to be
otherwise. We may advert to statements of law
enunciated by this Court over time.
82. As to the importance of the evidence of the
statement recorded under Section 164 and as to
whether it constitutes substantial evidence, we may
only advert to the following judgment i.e., in George
Vs. State of Kerala. (SCC p. 624. para No.36)
"36...... In making the above and similar comments
the trial court again ignored a fundamental rule of
criminal jurisprudence that a statement of a witness
recorded under Section 164 of Cr.P.C cannot be used
as substantive evidence and can be used only for the
purpose of contradicting or corroborating him",
83. What is the object of recording the
statement, originally of witnesses under Section 164
has been expounded by this court in R. Shaji Vs. State
of Kerala. (SCC. P, 279, paras 27-28)
27. So far as the statement of witnesses recorded
under Section 164 is concerned, the object is twofold;
in the first place, 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 is in court should be discarded, is not at
all warranted.
28. Section 157 of the Evidence Act makes it clear
that a statement recorded under Section 164 of 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 of Cr.P.C,
such statements cannot be treated as substantive
evidence.
10
84. Thus, in a case where a witness, in his
statement under Section 164 of Cr.P.C. makes
culpability of the accused beyond doubt but when he
is put on the witness stand in the trial, he does a
complete somersault, as the statement under Section
164 is not substantial evidence then what would
be position? The substantive evidence is the
evidence rendered in the court, should there be
no other evidence against the accused, it would
be impermissible to convict the accused on the
basis of the statement under Section 164.
14. He has also furnished the decision of Hon'ble
Supreme Court reported in (2021) 10 SC 598 between
Criminal Trails Guidelines Regarding Inadequacies and
Deficiencies in Re Vs. State of Andhra Pradesh and
others, wherein at Sl.No.10 Hon'ble Supreme Court has
held as under:
10. REFERENCES TO STATEMENTS UNDER SECTION
161 AND 164 CRPC:
i. During cross examination, the relevant portion of
the statements recorded under Section 161 Cr.PC used
for contradicting the respective witness shall be
extracted. If it is not possible to extract the relevant
part as aforesaid, the Presiding Officer, in his
discretion, shall indicate specifically the opening and
closing words of such relevant portion, while
recording the deposition, through distinct marking.
ii. In such cases, where the relevant portion is not
extracted, the portions only shall be distinctly marked
as prosecution or defence exhibit as the case may be,
so that other inadmissible portions of the evidence
are not part of the record.
iii. Incases, where the relevant portion is not
extracted, the admissible portion shall be distinctly
marked as prosecution or defence exhibit as the case
may be,
11
iv. The aforesaid rule applicable to recording of
the statements under Section 161 shall mutatis
mutandis apply to statements recorded under Section
164 of the Cr.PC, whenever such portions of prior
statements of living persons are used for
contradiction/corroboration.
v. Omnibus marking of the entire statement
under S. 161 and 164 Cr.P.C shall not be done.
15. As per the above decisions it is clear that the rules
applicable to the recording the statement under Section 161
shall mutatis mutandis apply to the statement recorded under
Section 164 of Cr.P.C and they can be used only for
contradiction and corroboration at time of cross-examination.
16. In this case now the learned Spl. Public Prosecutor
intends to mark the statement recorded by the PW-1 before
Magistrate. But as per the above decisions it is clear that the
statement recorded under Section 164 of Cr.P.C can be used
only for corroboration ог contradiction as it is a previous
statement given before the trial. Hence, this court is of the view
that the above decisions aptly applicable to the present case on
hand. Hence, this court is of the view that statement of the
witnesses recorded under Section 164 of Cr.P.C cannot be
marked in chief-examination. Hence, I answer Point No.1 in the
Negative and proceed to pass the following:
ORDER
Statement recorded by the witnesses under
Section 164(5) of Cr.P.C cannot be marked in chief-
examination of the witnesses and it can be used only
for contradiction or corroboration at the time of cross-
examination.
Sd/-21/06/24
Spl, 2nd Addl. Dist & Sessions Judge
Chitradurga.”
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The reasons so rendered by the concerned Court are on the footing
that barring marking of the statement under Section 161 of the
Cr.P.C. would mutatis mutandis apply to the statement recorded
under Section 164. But, it was permitted to be used for
corroboration or contradiction at the time of cross-examination.
How it was used later is required to be analyzed, for which the
evidence is necessary to be noticed. The cross-examination of the
witness on 01-07-2024 reads as follows:
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16
The afore-quoted is the cross-examination of PW-1. The Public
Prosecutor has sought to examine the witness on the strength of
the document i.e., the statement rendered under Section 164(5) of
the Cr.P.C. What is permitted in law is usage of the document for
contradiction or corroboration. In the considered view of the Court,
it is being used for the said purpose. It is not marked but it is only
used for contradiction or corroboration. I deem it appropriate to
notice the judgments relied on by the learned senior counsel to
contend that a statement under Section 164 of the Cr.P.C., cannot
be marked in evidence.
8. The Apex Court in the case of CRIMINAL TRIALS
GUIDELINES REGARDING INADEQUACIES AND
DEFICIENCIES, IN RE v. STATE OF ANDHRA PRADESH1 has
held as follows:
“…. …. ….
12. It was pointed out by the learned Amici Curiae that
the practice adopted predominantly in all trials is guided by the
decision of this Court in Bipin Shantilal Panchal v. State of
1
(2021) 10 SCC 598
17
Gujarat [Bipin Shantilal Panchal v. State of Gujarat, (2001) 3
SCC 1: 2001 SCC (Cri) 417] with respect to objections regarding
questions to be put to witnesses. This Court had termed the
practice of deciding the objections, immediately as “archaic” and
indicated what it felt was an appropriate course: (SCC pp. 5-6,
paras 13-15)
“13. It is an archaic practice that during the
evidence-collecting stage, whenever any objection is raised
regarding admissibility of any material in evidence the court
does not proceed further without passing order on such
objection. But the fallout of the above practice is this :
Suppose the trial court, in a case, upholds a particular
objection and excludes the material from being admitted in
evidence and then proceeds with the trial and disposes of
the case finally. If the appellate or the revisional court,
when the same question is recanvassed, could take a
different view on the admissibility of that material in such
cases the appellate court would be deprived of the benefit of
that evidence, because that was not put on record by the
trial court. In such a situation the higher court may have to
send the case back to the trial court for recording that
evidence and then to dispose of the case afresh. Why
should the trial prolong like that unnecessarily on account of
practices created by ourselves. Such practices, when
realised through the course of long period to be hindrances
which impede steady and swift progress of trial proceedings,
must be recast or remoulded to give way for better
substitutes which would help acceleration of trial
proceedings.
14. When so recast, the practice which can be a
better substitute is this: Whenever an objection is raised
during evidence taking stage regarding the admissibility of
any material or item of oral evidence the trial court can
make a note of such objection and mark the objected
document tentatively as an exhibit in the case (or record
the objected part of the oral evidence) subject to such
objections to be decided at the last stage in the final
judgment. If the court finds at the final stage that the
objection so raised is sustainable the Judge or Magistrate
can keep such evidence excluded from consideration. In our
view there is no illegality in adopting such a course.
(However, we make it clear that if the objection relates to
deficiency of stamp duty of a document the court has to
18
decide the objection before proceeding further. For all other
objections the procedure suggested above can be followed.)
15. The above procedure, if followed, will have two
advantages. First is that the time in the trial court, during
evidence-taking stage, would not be wasted on account of
raising such objections and the court can continue to
examine the witnesses. The witnesses need not wait for
long hours, if not days. Second is that the superior court,
when the same objection is recanvassed and reconsidered
in appeal or revision against the final judgment of the trial
court, can determine the correctness of the view taken by
the trial court regarding that objection, without bothering to
remit the case to the trial court again for fresh disposal. We
may also point out that this measure would not cause any
prejudice to the parties to the litigation and would not add
to their misery or expenses.”
13. It was argued by the Amici Curiae that the procedure,
whereby the courts record answers to all questions, regardless
of objections, leads to prolonged and lengthy cross-examination,
and more often than not, irrelevant facts having no bearing on
the charge or the role of the accused, are brought on record,
which often result in great prejudice. It is pointed out that due
to the practice mandated in Bipin Shantilal Panchal [Bipin
Shantilal Panchal v. State of Gujarat, (2001) 3 SCC 1 : 2001
SCC (Cri) 417] , such material not only enters the record, but
even causes prejudice, which is greatly multiplied when the
appellate court has to decide the issue. Frequently, given that
trials are prolonged, the trial courts do not decide upon these
objections at the final stage, as neither the counsel addresses
arguments. Therefore, it is submitted that the rule in Bipin
Shantilal Panchal [Bipin Shantilal Panchal v. State of Gujarat,
(2001) 3 SCC 1: 2001 SCC (Cri) 417] requires reconsideration.”
The Apex Court, a little earlier, in the case of SOMASUNDARAM v.
STATE2 has held as follows:
".... .... .... 2 (2020) 7 SCC 722 19 Purport and value of Section 164 CrPC
81. Section 164 CrPC enables the recording of the
statement or confession before the Magistrate. Is such
statement substantive evidence? What is the purpose of
recording the statement or confession under Section 164? What
would be the position if the person giving the statement resiles
from the same completely when he is examined as a witness?
These questions are not res integra. Ordinarily, the prosecution
which is conducted through the State and the police machinery
would have custody of the person. Though, Section 164 does
provide for safeguards to ensure that the statement or a
confession is a voluntary affair it may turn out to be otherwise.
We may advert to statements of law enunciated by this Court
over time.
82. As to the importance of the evidence of the
statement recorded under Section 164 and as to whether it
constitutes substantial evidence, we may only advert to the
following judgment i.e. in George v. State of
Kerala [George v. State of Kerala, (1998) 4 SCC 605 : 1998
SCC (Cri) 1232 : AIR 1998 SC 1376] : (SCC p. 624, para 36)
“36. … In making the above and similar comments
the trial court again ignored a fundamental rule of criminal
jurisprudence that a statement of a witness recorded under
Section 164 CrPC, cannot be used as substantive evidence
and can be used only for the purpose of contradicting or
corroborating him.”
83. What is the object of recording the statement,
ordinarily of witnesses under Section 164 has been expounded
by this Court in R. Shaji v. State of Kerala [R. Shaji v. State of
Kerala, (2013) 14 SCC 266 : (2014) 4 SCC (Cri) 185] : (SCC p.
279, paras 27-28)
“27. So far as the statement of witnesses recorded
under Section 164 is concerned, the object is twofold; in the
first place, 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
20
warranted. (Vide Jogendra Nahak v. State of
Orissa [Jogendra Nahak v. State of Orissa, (2000) 1 SCC
272: 2000 SCC (Cri) 210] and CCE v. Duncan Agro
Industries Ltd. [CCE v. Duncan Agro Industries Ltd., (2000)
7 SCC 53 : 2000 SCC (Cri) 1275] )
28. Section 157 of the Evidence Act makes it clear
that a statement recorded under Section 164 CrPC, 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 CrPC, such statements cannot
be treated as substantive evidence.”
84. Thus, in a case where a witness, in his
statement under Section 164 CrPC, makes culpability of
the accused beyond doubt but when he is put on the
witness stand in the trial, he does a complete somersault,
as the statement under Section 164 is not substantial
evidence then what would be the position? The
substantive evidence is the evidence rendered in the
court. Should there be no other evidence against the
accused, it would be impermissible to convict the accused
on the basis of the statement under Section 164.”
(Emphasis supplied)
9. A Division Bench of this Court in HANUMANTHA
MOGAVEERA v. STATE OF KARNATAKA3 has held as follows:
“…. …. ….
23. The first point of reference is, whether the statement
which has been recorded under Section 164 of Cr.P.C. could be
considered to be an evidence under Section 35 of the POCSO
Act. In our considered view, the same cannot be equated as one
and the same. As already noted, a statement under Section 164
of Cr.P.C., is during the course of investigation or at any time
3
ILR 2021 KAR 3469
21
afterwards before the commencement of the trial. But, the
evidence recorded before the Special Court under Section 35 of
the POCSO Act is during the course of the trial. The two cannot
be equated and neither are they on same plane.
... ... ...
32. Recently, the Hon'ble Supreme Court
in Somasundaram @ Somu v. State Reptd. by the Deputy
Commissioner of Police [(2020) 7 SCC 722.],
(Somasundaram) has discussed the purpose and value of
statement of confession recorded under Section 164 Cr.RC. and
in the context of whether such a statement recorded under
Section 164 Cr.RC, constitutes substantial evidence. It was
observed that it cannot be used as substantive evidence and it
can only be used for contradicting or corroborating the maker of
the statement. While placing reliance on George v. State of
Kerala [(1998) 4 SCC 605.] , and while referring to R.
Shaji v. State of Kerala [(2013) 14 SCC 266.] it was observed
that the statement of witnesses recorded under Section 164
Cr.P.C. has two-fold object : firstiy, 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 Cr.P.C. It was
also categorically observed that if a statement of witness is
recorded under Section 164 Cr.P.C., his evidence in Court
should be discarded, is not at all warranted, vide Jogendra
Nahak v. State of Orissa [(2000) 1 SCC 272.].
… … …
38. In view of the aforesaid discussion, we answer
question No. 1 by holding that the statement recorded under
Section 164 of Cr.P.C., cannot be considered to be evidence
under Section 35 of the POCSO Act.”
10. The learned senior counsel has also placed reliance upon
the judgment of the High Court of Telangana in CHOPPARI
KUMAR v. STATE OF TELANGANA4 wherein it is held as follows:
".... .... .... 4 2022 Crl.L.J. 3936 22
6. The practice adopted by the trial Court in marking
Section 164 CrPC statement is incorrect. Statement of a witness
recorded under Section 164 CrPC is a previous statement and
can only be confronted in accordance with Section 145 of the
Evidence act and relevant portion should be made part of the
deposition. It appears that for the reason of witness accepting
his statement under Section 164 of CrPC, it was marked, which
procedure is incorrect. For the purpose of adjudicating the
appeal, the statement of Ex.P12 is extracted above.”
The Apex Court in Criminal Trials supra was streamlining the
procedure adopted for speedy disposal of cases. While considering
the point, the Apex Court holds that omnibus marking of entire
statement under Sections 161 and 164 shall not be done; it is not
done in the case at hand. The Apex Court in the case of
SOMASUNDARAM supra also holds that statement recorded under
Section 164 of the Cr.P.C., if it is found to be genuine, it can be
used as an important piece of evidence to connect the accused with
the crime. The Apex Court at paragraph 84 observes that in case
where a witness in the statement under Section 164 makes
culpability of the accused beyond doubt but when he is put on the
witness stand in the trial, he does a complete somersault. The
substantive evidence rendered would be in the court at the time of
trial. Section 164 statement is not a substantive evidence.
23
11. The Division Bench of this Court in HANUMANTHA
MOGAVEERA’S case supra while answering challenge to the trial in
a POCSO case observes that the victim’s 164 statement cannot be
marked. Same goes with the Telangana High Court. It is not
marked in the case at hand. The attempt to mark is thwarted by
the order passed by the concerned Court.
12. It becomes apposite to refer to the statement relied on by
the Additional Special Public Prosecutor in the case of RAM
KISHAN SINGH v. HARMIT KAUR5 wherein the Apex Court holds
as follows:
“…. …. ….
8. A statement under Section 164 of the Code of Criminal
Procedure is not substantive evidence. It can be used to
corroborate the statement of a witness. It can be used to
contradict a witness. The first information report was considered
by the Sessions Judge. Any special consideration of the
statement of Hazura Singh under Section 164 of the Code of
Criminal Procedure could not have produced a different result by
reason of the conclusions of the Sessions Judge as to rejecting
the oral evidence of Nihal Kaur, Harmit Kaur and Hazura Singh
as unreliable, untruthful and unworthy of credence.
… … …
10. The High Court in setting aside the acquittal said that
the result would have been different if the Sessions Judge had
taken into consideration the statement of Hazura Singh Exhibit
5
(1972) 3 SCC 280
24
P-4 with which Hazura Singh had been confronted. In cross-
examination Hazura Singh said that the statement before the
Magistrate Exhibit P-4 was made under threat and was a wrong
statement. The Sessions Judge found that Hazura Singh made
the same statement disowning the first information report.
Hazura Singh was torn in his conscience between emotion for
his son the appellant on the one hand and his wife Nihal Kaur
and the deceased son Bharpur Singh on the other.”
The Apex Court holds that a statement under Section 164 of the
Cr.P.C., is not substantive evidence. It can be used to corroborate a
witness. It is exactly what the prosecution has attempted in the
evidence that is recorded in the case at hand.
13. In somewhat identical circumstance, the High Court of
Calcutta in SK. KHELAFAT MOJHI v. THE STATE OF WEST
BENGAL6 has held as follows:
“The present petitioner is facing his trial of an offence
punishable under Section 376 of the Indian Peal Code before the
Learned Additional District & Sessions Judge, Fast Track
2nd Court, Uluberia, Howrah. In course of such trial, the
statement of the victim girl recorded under Section 164 of the
Code of Criminal Procedure was tendered by the Investigating
Officer of the case and was marked as Exhibit — 9. However,
defence raised an objection to that on the ground no statement
under Section 164 of the Code can be marked exhibit and be
admitted into evidence without the Learned Magistrate
concerned who recorded such statement being examined in
Court. The Learned Trial Court rejected such objection. Hence,
this Criminal Revision.
6
2010 SCC OnLine Cal.1063
25“2. Heard Mr. Rabindra Nath Pal, Learned Counsel
appearing for the petitioner, Mr. Debabrata Roy, Learned
Counsel appearing for the State as well as Mr. Manjit Singh,
appearing as Amicus Curiae.
3. In this case, the short question that arises for decision,
as to whether a statement recorded under Section 164 of the
Code of Criminal Procedure can be admitted into evidence and
be marked as exhibit, without the concerned Magistrate
recorded such statement being examined during the trial.
4. According to the Learned Advocate of the petitioner,
although the Learned Magistrate was very much available but in
spite of repeated summons were issued, he did not turn up. He
further submitted that it transpired from the 164 statement of
the victim that the Learned Magistrate has recorded something
incriminating against the petitioner, which has not been stated
by the victim girl in her evidence during the trial. Thus, he
submitted if the Learned Magistrate is not examined, then in
that case the accused shall lost the opportunity to take such
contradiction with reference to the evidence of the victim girl.
On the other hand, Mr. Debabrata Roy, Learned Counsel
appearing for the State, submitted before this Court that there
is no bar to exhibit a statement recorded under Section 164 of
the Code of Criminal Procedure without the examination of the
concerned Magistrate recorded the same and such statement
may be taken into consideration by the Trial Court.
5. Whereas, according to Mr. Manjit Singh, Advocate
appearing as Amicus Curiae, there is no bar in exhibiting a
statement recorded by a Learned Magistrate, be that be a
confession of an accused or a statement of a witness without
examining the Learned Magistrate during the course of trial.
According to him, such statement can very well be tendered into
evidence by the Investigating Officer of this case. In support of
his submissions, Mr. Singh relied on a decision of the Hon’ble
Supreme Court in the case of Madi Ganga v. State of Orissa,
reported in AIR 1981 SC 1165. In paragraph 5 of the said
decision, the Hon’ble Supreme Court held as follows;
26
“5. ……..The Learned Magistrate has put to the
accused all the necessary questions to satisfy himself that
the confession was voluntary. He has also appended the
necessary certificate. We do not accept Shri Jain’s
submission that the Learned Magistrate should have been
examined as a witness. Section 80 of the Evidence Act
makes the examination of the Magistrate unnecessary. It
authorizes the Court to presume that the document is
genuine, that any statements as to the circumstances under
which it was taken are true and that such confession was
truly take in accordance with law.”
Mr. Singh further relied on a decision in the case
of Guruvindapalli Anna Rao & Ors. v. The State of A.P., reported
in 2003 Cri. L.J. 3253, where the Hon’ble Division Bench of the
Andhra Pradesh High Court in paragraph 7 held as follows;
“7. We could like to put one more discrepancy on
record, viz., that while recording evidence, the learned II
Additional Sessions Judge had summoned the I Additional
Munsif Magistrate, Tenali (P.W. 10) to prove the statement
of P.W. 1 recorded by him under Section 164, Cr.P.C. This
Court has already ruled if any Magistrate records the
statement of a witness under Section 164, Cr.P.C., it is not
necessary for the Sessions Judges to summon that
Magistrate to prove the contents of the statement recorded
by him. This Court has already ruled that when a
Magistrate, discharging his official functions as such,
records the statement of any witness under Section 164,
Cr.P.C., such statement is a ‘public document’ and it does
not require any formal proof. …………..”
Mr. Singh relied on a Special Bench decision of our High
Court in the case of Padam Prashad Upadhyaya v. Emperor,
reported in AIR 1929 Calcutta 617, Special Bench. The relevant
portion of page 626 is quoted below;
“S. 80, Evidence Act does not deal with the question
of admissibility of the documents referred to therein but
simply dispenses with the necessity of their formal proof by
raising the presumption that everything in connection with
them had been legally and correctly done i.e., (i) that the
documents purporting to be record of evidences or
statements or confessions are genuine (ii) that the
statements as to the circumstances under which they were
taken made by the officer who affixed his signature are true
27and (iii) that the evidence, statement or confession was
duly taken.”
Lastly, Mr. Singh relied on another decision in the case
of Sadulla v. Emperor, reported in AIR 1938 Lahore 477. The
Lahore High Court held as follows;
“The fact that the person who made the statement
under S. 164 is the person in Court can be proved by the
police officer who had the statement recorded and the
trying Magistrate need not be examined.”
6. Now, having regards to the case laws relied upon
by Mr. Singh, indisputably a statement of witness
recorded under Section 164 of the Code can very well be
admitted into evidence and be marked as exhibit without
the Learned Magistrate who recorded the statement
being examined in Court. But, such statement not being a
substantive piece of evidence can only be used either to
contradict or to corroborate the maker thereof. According
to the learned advocate of the petitioner some
incriminating statement although was made by the victim
in her statement recorded under Section 164 of the Code,
but such statement was not found place in her
substantive evidence in Court, if that be so non-
examination of the Learned Magistrate recorded such
statement will not in any way prejudice the petitioner.
This criminal revision has no merit and accordingly
stands dismissed. Interim order, if any, stands vacated.
At the end this court record its deep appreciation
for the assistance rendered by Mr. Manjit Singh, advocate
appearing as Amicus Curiae.”
(Emphasis supplied)
The first paragraph captures the issue before the Court. It was the
statement of the victim girl recorded under Section 164 to be
marked as exhibit and to be admitted in evidence. The contention is
28
found at paragraph-5 and finding at paragraph-6. The Calcutta
High Court holds, indisputably the statement of the witness
recorded under Section 164 of the Cr.P.C. can very well be
admitted into evidence. But such statement not being substantive
piece of evidence can only be used either to contradict or
corroborate the maker thereof.
14. The High Court of Bombay in VINOD v. STATE OF
MAHARASHTRA7 again answering a similar issue has held as
follows:
“…. …. ….
2. The petitioner is seeking reliefs as under:
B) The unilateral decision of the learned trial Court
to Exhibit the statements of the witnesses recorded under
Section 164 of the Criminal Procedure Code, 1973 without
they being spoken about in the testification by the
witnesses before the Court while recording their evidence,
may kindly be faulted and that the exhibition done by the
learned trial Court from Exh. 116 to 122 of the trial Court
record, i.e. in Special Case (child) No. 10 of 2018 may
kindly be ordered to be upset and these statements de-
exhibited;
C. In the alternative, the defence be permitted to
cross-examine the relevant witnesses on their respective
statements recorded under Section 164 Cr. P.C. by
allowing the application of the Petitioner recorded at Exh.
7
2021 SCC OnLine Bom. 2353
29
135 of the lower Court proceeding, being Special Case
(child) No. 10 of 2018, and consequently, upsetting of the
impugned order of the learned trial Court passed below
Exh. 135 decided on 25.02.2021.
3. It is contended that the petitioner is facing trial for the
offences punishable under Sections 376(2)(i), 323 read with
Section 34 of the Penal Code, 1860 (for short ‘IPC’) read with
Sections 4, 5(m), 6 and 8 of the Protection of Children from
Sexual Offences (POCSO) Act, 2012.
4. The charge came to be framed against the petitioner
on 12.03.2018. Thereafter, the charge was altered on
12.02.2020. The prosecution led the evidence of the victim and
others. The prosecution has closed the evidence and the matter
was listed for hearing on 17.02.2021. During the arguments of
the Public Prosecutor, the petitioner came to know that the trial
Court has exhibited the statements of witnesses recorded under
164 of the Code of Criminal Procedure (for short “Cr.P.C.”)
without giving notice to the petitioner. The petitioner had
submitted an application (Exh. 135) for recalling of witnesses for
cross-examination in the light of their statements recorded
under Section 164 of the Cr. P.C. The said application came to
be rejected. While rejecting the application, the trial Court has
passed remarks against the Advocate of the petitioner. The said
remarks are un-warranted hence, are required to be set aside.
It is also prayed that the statements of witnesses recorded
under Section 164 of the Cr. P.C. be de-exhibiated and in the
alternative the petitioner be allowed to cross examine the
witnesses.
5. Heard Mr. Hemant Surve, the learned counsel on
behalf of the petitioner and Mrs. Geeta L. Deshpande, the
learned APP on behalf of the Respondent-State.
6. Learned counsel for the petitioner has raised following
questions which are as under:
“a. Whether, the statements recorded under
Section 164 of the Code of Criminal Procedure,
1973 before the learned Magisterial Court, could be
exhibited under Section 80 of the Evidence Act,
1872 whereby the right of the accused to question
30
the prosecution witnesses on these statements could
be snatched away?
b. Whether, the statements under Section 164 of
the Code of Criminal Procedure, 1973 could be
exhibited unilaterally without even affording of the
copies of these statements to the accused?
c. Whether, the observations of the learned Judge,
while adjudicating the application under scrutiny by
this Honourable Court, were at all warranted? and
d. Whether, such observations correspond to the
factuality?
7. Learned counsel for the petitioner submitted that
the trial Court is likely to read the statement of witnesses
recorded under Section 164 of the Cr. P.C. as an evidence
against the petitioner, which is not permissible. To
substantiate his case he relied on the ratio laid down in
the case of Hanumantha Mogaveera v. State of
Karnataka in the case of Criminal Petition No. 2951 of
2020.
8. In the case cited supra the Hon’ble Chief Justice of the
Karnataka High Court by order dated 12.01.2021 constituted a
Bench to consider the reference made by the Single Judge of
that Court under the provisions of Protection of Children from
Sexual Offences Act, 2012 (“POCSO Act”) and under Section
164 and other provisions of the Code of Criminal Procedure
(“Cr.P.C.”). The Single Judge has made reference to the Division
Bench in following terms:
“26. At this juncture, it is brought to the notice of
this Court that when already the co-ordinate Bench in the
case of Vinay v. State of Karnataka, rep. by Special
PP, (Supra) and other two co-ordinate Benches have taken
a different view and this Court is taking a different view,
then under such circumstances, the matter has to be
referred to the Larger Bench to consider the aspect of laying
down the law. In that light, I am of the considered opinion
that the matter requires to be referred to the Larger Bench
to consider the following issues:
31
i) Whether the evidence which has been recorded
under Section 164 of Cr. P.C. can be considered to
be an evidence under Section 35 of the POCSO
Act?
ii) If the evidence of the child has not been recorded
within a period of thirty days of taking cognizance
of the offence, and if the Special Court does not
complete the trial within a period of one year from
the date of taking cognizance, whether accused is
entitled to be released on bail holding that it is a
default clause which gives a right to the accused?”
9. The Hon’ble Bench has answered the issue No. 1 by
holding that the statement recorded under Section 164 cannot
be considered to be evidence under Section 35 of the POCSO
Act. The Hon’ble Bench has answered the issue No. 2 by holding
that non compliance of Section 35 of POCSO Act cannot be a
basis for releasing accused on bail as that could be the
misreading of the provisions.
10. In view of the above ratio, it can be said that the
statements of witnesses recorded under Section 164 of the Cr.
P.C. cannot be considered to be the evidence under Section 35
of the POCSO Act.
11. It is the basic case of the petitioner that the
Court has exhibited the statements of witnesses recorded
under Section 164 of the Cr. P.C. without giving notice to
the petitioner. According to the petitioner, the said act of
the Court is unilateral and affected his rights. Admittedly
the statements of witnesses are recorded by the Judicial
Magistrate First Class with the help of Section 80 of the
Indian Evidence Act. To appreciate the above contention
one has to fall back upon the provisions of Section 80 of
the Act. Therefore, the provisions of Section 80 of the Act
are required to be considered, which runs as under:
“80. Presumption as to documents produced as
record of evidence, – Whenever any document is produced
before any Court, purporting to be a record or
memorandum of the evidence, or of any part of the
evidence, given by a witness in a judicial proceeding or
before any officer authorised by law to take such evidence,
32or to be a statement or confession by any prisoner or
accused person, taken in accordance with law, and
purporting to be signed by any Judge or Magistrate, or by
any such officer as aforesaid, the Court shall presume-
that the document is genuine; that any statements
as to the circumstances under which it was taken,
purporting to be made by the person signing it, are
true, and that such evidence, statement or
confession was duly taken.”
12. On this point a useful reference can be made to the
ratio laid down in the case of Madi Ganga v. State of
Orissa reported in (1981) 2 SCC 224 : AIR 1981 SC 1165,
wherein it is held that:
“Section 80 of the Evidence Act makes the
examination of the Magistrate unnecessary. It authorises
the Court to presume that the document is genuine, that
any statements as to the circumstances under which it was
taken are true and that such confession was truly taken in
accordance with law.”
13. Admittedly, during the cross-examination of
witnesses, their statements recorded under Section 164 of the
Cr. P.C. were not shown to them but witnesses have
categorically stated that their statements were recorded by the
Judicial Magistrate First Class during the course of the
investigation. So there is no dispute that the statements of
witnesses were recorded by the Magistrate under Section 164 of
the Cr. P.C.
14. On perusal of the impugned order (Exh. 135),
the trial Court has made it clear that the statements of
witnesses under Section 164 of the Cr. P.C. were the part
of the charge-sheet. The copies of the said statements
were provided to the petitioner. The petitioner has also
put some questions to the witnesses wherein, the
witnesses have admitted that their statements were
recorded by the Judicial Magistrate First Class. It appears
that inspite of having statements of witnesses recorded
under Section 164 of the Cr. P.C., the petitioner has not
cross-examined the witnesses, with reference to the
contents of said statements. The statements of witnesses
33
are recorded under Section 164 of Cr. P.C. were exhibited
on 20.12.2019. Thereafter, the matter was adjourned for
time to time for arguments.
15. The petitioner came with a story that he came
to know about the exhibition of statements of witnesses
recorded under Section 164 of Cr. P.C. on 17.02.2021
during the arguments of the public prosecutor. It is not
disputed by the petitioner that copies of the statements
under Section 164 have been supplied to him along with
the charge-sheet. So, the petitioner was well aware of
the contents of the statements so he could have
confronted the witnesses with the aid of the said
statements recorded under Section 164 of the Cr. P.C.
Now the petitioner cannot take stand that he was un-
aware of the contents of the statements, therefore, he
must be given chance to cross-examine witnesses on the
basis of statements recorded under Section 164 of Cr.
P.C. It is the mandate of law that the evidence of the
victim should be recorded within one month from taking
cognizance of the offence, which is done by the trial
Court, therefore, the victim cannot be recalled for cross-
examination. If she is allowed to be re-called for cross-
examination, then it would be like causing trauma to her.
The Trial Court has exhibited the statements of witnesses
under Section 164 of the Cr. P.C. as per the provisions of
law. At the same time, I must mention here that the said
statements cannot be read in evidence as observed in the
case of Hanumantha cited (supra). It cannot be said that
as the trial Court has exhibited documents, therefore, the
petitioner has caused prejudice. Therefore, on this count,
the petitioner is not entitled for de-exhibition of the
statements of witnesses recorded under Section 164 of
the Cr. P.C. or recalling of witnesses for further cross-
examination.”
(Emphasis supplied)
The second paragraph captures the issue. The issue is whether
usage of Section 164 statement is for corroboration or
34
contradiction. The facts are found in paragraph 4. As found in the
case at hand, the action of marking the document comes to be
rejected. The Bombay High Court answers it holding that it is not a
substantive piece of evidence but can be used for corroboration or
contradiction.
15. If the law as laid down by the Apex Court, this Court or
other High Courts is applied to the case at hand, what would
unmistakably emerge is that a statement made under Section 164
of the Cr.P.C., is not completely barred in law to mark the said
statement, but it is not a substantive evidence and it being
characterized as not a substantive evidence, it is only in a slightly
higher pedestal than a statement made under Section 161 of the
Cr.P.C., before the Investigating Officer. It can only be used for
contradiction or corroboration at the time of cross-examination.
What is done in the case at hand, in the considered view of the
Court, is exactly the same.
16. These are grounds that can be urged before the appellate
forum in the event the case would go against the accused. This
35
Court, in exercise of jurisdiction under Section 482 of the Cr.P.C.,
cannot, during the trial, enter into and direct as to how the trial
should be conducted, unless the conduct of the trial would result in
miscarriage of justice. I do not find any such warrant in the case at
hand. As observed hereinabove, it is always open to urge these
contentions at the relevant point in time before the appropriate
fora. I decline to exercise my jurisdiction under Section 482 of the
Cr.P.C.
17. In the result, the petition lacking in merit stands rejected.
Consequently, pending applications if any, also stand
disposed.
Sd/-
(M. NAGAPRASANNA)
JUDGE
bkp
CT:SS