Criminal Misc.No. M-36670 of 2009(O&M) 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Criminal Misc.No. M-36670 of 2009(O&M) Date of decision: 12.03.2010 Tej Bahadur ..............Petitioner Versus State of Punjab ................Respondent CORAM:- HON'BLE MR. JUSTICE HARBANS LAL Present: Mr. Hemender Goswami, Advocate, for the petitioner Mr. Amit Goyal, Assistant Advocate General, Haryana HARBANS LAL,J. This petition has been moved by Tej Bahadur under Section 482 of Cr.P.C. for quashing the order dated 22.10.2009 Annexure P-5 passed by the learned Judicial Magistrate Ist Class, Ludhiana and for issuance of direction to record the statement of the prosecutrix Sunita Gupta under Section 164 of Cr.P.C. I have heard the learned counsel for the parties, besides perusing the record with due care and circumspection. The learned counsel for the petitioner submitted that the prosecutrix has never been produced before the court after she was recovered for getting her statement recorded under Section 164 of Cr.P.C. An application moved for recording such statement has been dismissed by the learned Judicial Magistrate Ist Class vide impugned order dated 22.10.2009 on the ground that this application has been filed by the parents of the prosecutrix of their own and the same is not sponsored by the Criminal Misc.No. M-36670 of 2009(O&M) 2 prosecution agency. The court is duty bound to collect the best evidence. In this process, it should not be swayed by the sheer technicalities which adversely affect the imparting of justice. A direction may be issued to record the statement of the prosecutrix under Section 164 of Cr.P.C. To overcome these submissions, the learned State Counsel maintained that since the allegations stood proved, so the supplementary challan has been submitted against accused Dulla. It was during pendency of the trial that the petitioner had moved an application before the learned Trial Court for recording the statement of his daughter under Section 164 of Cr.P.C. It is further argued that the statement of the prosecutrix was recorded under Section 161 of the Cr.P.C. and it is on the basis of such statement that Section 376 of the Indian Penal Code was added in the array of Sections. I have well considered the rival contentions. Arguendo, the learned counsel for the petitioner regretted his inability to draw attention of the court towards any provision of Cr.P.C. envisaging that the court is duty bound to record the statement of the witness under Section 164 of Cr.P.C. The motive behind recording of such statement is that if at the subsequent stage, the maker of such statement fails to lend support to the prosecution case, she can be confronted therewith. Such an application can be moved only by the Investigating Officer to the Ilaqa Magistrate. There is no provision in the Cr.P.C. contemplating that the investigating agency is bound to move such an application at the mere asking of the complainant party. In the present one, the supplementary challan has already been presented in the court against the accused Dulla. It implies that the investigation part is over. So, this is not the stage to record Criminal Misc.No. M-36670 of 2009(O&M) 3 the statement of the prosecutrix under Section 164 of Cr.P.C. In the factual scenario, no case is made out for giving direction as sought for. Sequelly, this petition is dismissed. Since the petition has been decided, all pending Criminal Miscellaneous,if any, also stand disposed of. (HARBANS LAL) JUDGE March 12, 2010 RSK NOTE: Whether to be referred to the Reporter or not? Yes/No