Wednesday 19 May 2021

Whether Session Judge or Special Judge must examine Magistrate who has recorded statement of witness U/S 164 of CRPC?

  A Division Bench of this Court, in R. Murugesan v. State, [(2014) 1 LW (Cri) 339], in which, one of us (P.N. Prakash, J.) was a part, has elaborately discussed the evidentiary value of the statement of a witness recorded under Section 164 Cr.P.C. Despite the directions of the said Division Bench that the Magistrate recording the statement under Section 164 Cr.P.C. need not be examined as a witness, the essence of those directions has not percolated into the subordinate judiciary. In the said judgment, the Division Bench has set out the procedure as to how Public Prosecutors in the Trial Courts should deal with a witness, vis-a-vis, his statement recorded under Section 164 Cr.P.C. The Division Bench has placed reliance upon the judgment of the Supreme Court in State of Delhi v. Shri Ram Lohia, [AIR 1960 SC 490] and the Division Bench judgment of the Andhra Pradesh High Court in Bashapaka Laxmiah v. State of Andhra Pradesh, [2001 Cri LJ 4066], to conclude that a Magistrate recording the statement of a witness under Section 164 Cr.P.C. need not be examined as a witness in the trial of the case. We are extracting below the relevant passages from Shri Ram Lohia (supra) and Bashapaka Laxmiah (supra): Shri Ram Lohia:

“Statements recorded under S. 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 S. 164 of the Code and that what he had stated there was true would not make the entire statement admissible; much less could any part of it be used as substantive evidence in the case.

A Judge commits an error of law in using the statement of a witness under S. 164 as a substantive evidence in coming to the conclusion that he had been won over.”{Para 55}

56. Bashapaka Laxmiah:

“18. Repeatedly, we have issued instructions that statement under S. 164 Cr.P.C. is not a substantive piece of evidence. It, is not necessary to call the Magistrate to give evidence to prove S. 164 statement. Statements under S. 164 Cr.P.C. are available to the defence for contradiction by obtaining the certified copies. The S. 164 statement recorded by the Magistrate is a public document. Such practice, hereinafter, be stopped.”

57. In Re:—To issue certain guidelines regarding inadequacies and deficiencies in criminal trials, [2017 SCC OnLine SC 298], the Supreme Court has called for remarks from various stakeholders on the suggestions made by Justice Basant, a retired Judge of the Kerala High Court, for streamlining and putting in place good practices in the conduct of criminal trials. One such suggestion is as under:

“11. The practice of omnibus marking of S. 164 statement of witness deserves to be deprecated. The relevant portion of such prior statements of living persons used for contradiction or corroboration u/s 145/157 of the Evidence Act deserves to be marked separately and specifically."

58. In the light of the above discussion, we seek to build upon the Division Bench judgment of this Court in Murugesan (supra) by holding that even in cases, where, the witness completely denies having given a statement under Section 164 Cr.P.C. the Magistrate need not be examined as a witness and the factum of the witness having given such a statement to the Magistrate and the contradiction between his evidence and his previous statement can be proved in the examination of the Investigating Officer, on whose sponsorship, the said witness was produced before the Magistrate for the purpose of recording his statement. This, in our considered opinion, will be in consonance with the observations of the Privy Council in Nazir Ahmad v. The King Emperor, [(1936) 44 LW 583 : AIR 1936 PC 253] and Kashmira Singh v. State of Madhya Pradesh, [AIR 1952 SC 159], about which, we shall discuss in detail in the subsequent paragraphs.

59. A statement recorded under Section 164 Cr.P.C. is a public document within the meaning of Section 74(iii) of the Evidence Act as held by a Full Bench of this Court in State of Madras v. Krishnan, [(1960) 73 LW 713 : AIR 1961 Mad 92]. The original of the statement, which would form part and parcel of the Court records, is a primary evidence under Section 62 of the Evidence Act for proving the fact that the said witness had appeared before the Magistrate on the date found thereon and had given a statement, but, it does not prove the veracity of its contents.

In the High Court of Madras

(Before Indira Banerjee, C.J. and P.N. Prakash, J.)

Murugasamy  Vs  State 

CRl. O.P. No. 12148 of 2017

Decided on September 15, 2017, [Reserved on: 01.08.2017]

Citation: 2017 SCC OnLine Mad 37658 : (2017) 2 LW (Cri) 345 : (2017) 5 CTC 561 : (2017) 180 AIC (Sum 22) 10

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