Allahabad High Court Judgement

Allahabad High Court Judgement

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JUDGEMENT HEADLINE : Section 164 Cr. P.C. Magistrate's Examination Not Necessary To Prove Statements Of Witness Recorded By Him.
JUDGEMENT TITLE : Jeeraj @ Vijai & Another Vs. State Of U.P. & Another On 19/04/2008 By Allahabad High Court
CASE NO : APPLICATION U/S 482 NO. 26510 OF 2007
CORAM : Hon'ble Raghunath Kishore Rastogi,J.

HIGH COURT OF JUDICATURE AT ALLAHABAD

A.F.R.
Court No. 53
Criminal Misc Application No. 26510 Of 2007
Jeeraj And Another Vs. State Of U.P. & Another
Hon'ble R.K.Rastogi, J.
This Is An Application Under Section 482 Cr. P.C. To Quash The Order Dated 21.9.2007 Passed By Additional Sessions Judge, Fast Track Court No. 17, Bulandshahar In ST No. 418/94 Under Section 363, 366, 376 I.P.C. Case Crime No. 48/92 Of P.S. Narora, District Bulandshahar.
The Facts Relevant For Disposal Of This Application Are That The Applicants Are Accused In The Aforesaid Session Trial The Proceedings Of Which Started On The Basis Of A F.I.R. Lodged By Smt. Surjo At Police Station Narora, District Bulandshahar On 5.5.1992 Against The Accused-applicants And It Was Stated Therein That She Was Resident Of Village Tejpur, Distict Aligarh. On 24.4.1992, She Had Gone To The House Of Her Sister-in-law (Nanad) At Village Dhakangla P.S. Narora, District Bulandshahar To Perform The Rite Of Bhat. Her Daughter Km. Sunita Aged About 15 Years And Her Son Puranmal Etc. Had Also Accompanied Her. The Marriage Party Of Mahipal Son Of Her Sister-in-law Went To Badaun On 25.4.1992. The Male Members Of The Family Went In That Barat And The Ladies Stayed In The House. On 26.4.1992, The Accused Jeeraj Son Of Kishori Lal Who Had Come From Village Udaipur P.S. Anoopshahar To Attend The Marriage But Had Not Gone With The Barat, Kidnapped Km. Sunita At About 10. A.M. Km. Gita Daughter Of Mr. Rajendra Had Seen Jeeraj Taking Km. Sunita With Him. When The Barat Returned Back, Smt. Surjo Narrated This Incident Before Her Son And Other Relations. Then Her Son And Other Relations Tried To Search Km. Sunita. On 5.5.1992, Km. Sunita And Jeeraj And His Father Kishori Lal Were Seen Going To Anoopshahar, And On Seeing The Above Family Members Of Km. Sunita, They Ran Away Towards Their Village. Despite Search, They Could Not Be Found. Then Smt. Surjo Went To The Police Station And Lodged The Report. On The Basis Of The Above Report, The Police Registered A Case Under Section 363 And 366 I.P.C. After Recovery Of Km. Sunita, On The Basis Of Her Statement The Charge Under Section 376 I.P.C. Was Added In The Case. Her Medical Examination Was Also Conducted In Which No Injury Was Found Either On Her Body Or On Her Private Parts And She Was Found To Be Habitual To Intercourse. Her X-ray Was Performed To Ascertain Her Age And Her Age Was Assessed To Be 19 Years. Her Statement Was Also Recorded Under Section 164 Cr. P.C. In Which She Stated That She Had Willingly Gone With The Accused-applicant Jeeraj @ Vijai And Performed Court Marriage With Him And Resided With Him And She Also Had Two Months' Pregnancy.
In This Case, The Police After Necessary Investigation Submitted A Charge Sheet Against The Accused-applicants Under Section 363, 366, 376 I.P.C. And The Case Was Committed To Court Of Sessions, Where It Was Registered As ST No. 418/1994. The Statements Of The Prosecution Witnesses Were Recorded After Framing Of Charges Under Section 363, 366, 376 I.P.C. The Statement Of Accused Was Also Recorded Thereafter. Then The Case Was Listed For Arguments And At That Stage The Accused-applicants Moved An Application Before The Court That The Statement Of Km. Sunita Was Recorded Under Section 164 Cr. P.C. By The Third A.C.J.M., Bulandshahar But The Prosecution Has Not Got That Statement Proved By Km. Sunita, Nor Has Got That Statement Exhibited, And So It Could Not Be Read In Evidence. Hence, The Third A.C.J.M., Bulandshahar Should Be Summoned For Proving The Statement Of Km. Sunita Recorded By Him Under Section 164 Cr. P.C. After Hearing Both The Parties, The Above Application Was Rejected By The Learned Additional Sessions Judge, Bulandshahar. Aggrieved With That Order, The Accused Applicants Filed This Application Under Section 482 Cr. P.C. For Quashing The Same.
I Have Heard Learned Counsel For The Applicants And The Learned A.G.A. For The State. It Is To Be Seen That The Statement Of A Witness Recorded By A Magistrate Under Section 164 Cr. P.C. Does Not Record Proof, And There Is No Legal Requirement Of Examination Of The Magistrate For Proving The Same As Such The Application Moved By The Accused-applicants Was Misconceived And The Learned Lower Court Did Not Commit Any Illegality By Rejecting The Same. This Application Under Section 482 Cr. P.C. Has, In This Way, Got No Force And It Is Liable To Be Dismissed.
The Applicants May If They Want To Rely Upon The Statement Of Km. Sunita Recorded Under Section 164 Cr. P.C. In Their Defence, File A Certified Copy Of That Statement In The Court As A Defence Document. The Certified Copy Of That Statement Is Available With Them As Is Apparent From The Photo Copy Of That Certified Copy Filed In This Application Under Section 482 Cr. P.C. If Any Such Certified Copy Of The Statement Of Ms. Sunita Is Filed In The Case As Defence Evidence That May Be Considered By The Court While Appreciating The Evidence In Accordance With The Provisions Of Law. The Present Application Under Section 482 Cr. P.C. Is Dismissed With The Above Observation.

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