1 IN THE HIGH COURT OF JUD ICATURE AT BOMBAY NAGPUR BENCH, NAGPUR CRIMINAL APPLICATION NO. 3703 /2009 [ Sanjay Purushottam Narkhede vs. State of Maharashtra) ..................................................................................................................................................................... Office Notes, Office Memoranda of Coram, appearances, Court's orders Court's or Judge's order of directions and Registrar's orders ..................................................................................................................................................................... Mr. Y V Nayyar Adv. for applicant Mr K S Dhote, APP for Respondent .......... CORAM : A.P.BHANGALE, J. DATED : FEBRUARY 16, 2010. Heard. 2 By this application, the applicant prays for bail in connection with Crime no. 232/2009 for offence punishable under section 302 IPC at Pratap Nagar Police Station, Nagpur. 3 The accusations appears serious. It is alleged that on 20th September, 2009 the applicant himself went to inform the police about the murders committed by strangulating his wife and daughter, aged about 18 months, on the pretext of suspecting character of his wife - victim-Chitra. On the basis of first information lodged by accused himself, the crime was reported as FIR No. 232/2009 on 20th September, 2009. The investigation followed. The post-mortem notes indicate that both the victims died as a result of throttling. It is also alleged that the applicant had tried to commit suicide by consuming poison but fortunately survived due to timely medical treatment received by him at the 2 Hospital. 4 Learned Advocate for the applicant placed reliance upon the ruling in Mohd. Asgar s/o Abdul Jabbar vs.State of Maharashtra reported in 2004 All MR (Cri) 646 in order to argue that the fact that the accused himself filed FIR about the incident was considered by learned single Judge of this Court; however, as there was no direct evidence against the accused, he was granted benefit of bail subject to certain conditions. Therefore, he prayed for bail. 5 Learned APP opposed grant of bail on the ground that Special Judicial Magistrate has also recorded statement of the present applicant, in view of Section 164 of the Cr.P.C. and that would furnish clinching material against the applicant to indicate probability of long sentence in this case for offence of double murder and, therefore, accusations are very serious. The circumstantial evidence is also indicating the corroboration to information made by the applicant herein on the basis of which offence was registered u/s 302 IPC for double murder of his wife as well as his 18-month old daughter. 6 Learned Advocate for the applicant contended that he has not yet received copy of statement u/s 164 Cr.P.C. He also submitted that such statement cannot be recorded by Special Judl. Magistrate as under section 164 Cr.P.C. only Judicial Magistrate or Metropolitan Magistrate can record such statement. This Court can not 3 agree with the submission prima facie because the word used in Section 164 is “any Metropolitan Magistrate or Judicial Magistrate” in sub-section (1) while in sub- section (6) of Sec.164 it is mentioned : “the magistrate recording confession or statement under this Section shall forward it to the Magistrate by whom the case is to be enquired into and or tried.” The legislative intent appears to be that the any Magistrate can record such statement or confession notwithstanding the fact that he has no jurisdiction to enquire or try the offence provided that such statement which is recorded is forwarded to the Magistrate by whom the case is to be enquired into or tried. Under these circumstances and in view of the letter of the law, supra, I do not visualise any impediment in the way of prosecution for relying upon the statement recorded by Special Judl. Magistrate. That being so, considering the implications of Section 8 of the Indian Evidence Act, the evidence of conduct would be relevant in order to determine guilt of the offence along with other circumstantial evidence which have been collected in the course of investigation. Therefore, it cannot be said that confessional statement made by the accused have no value at all in view of Section 25 of the Indian Evidence Act, as such, statement can be evidence of incriminating conduct of the applicant and would be a relevant fact. Be that as it may; it can not be said that there is no material whatsoever against the applicant so as to grant benefit of bail. Of course, it would be for the trial Court to consider 4 the settled legal principles in this regard while deciding the case in accordance with law. At this stage, for the purpose of grant or rejection of bail, it is sufficient to note that earlier when the applicant had moved the learned Addl. Sessions Judge Nagpur who, by reasoned order notwithstanding the ruling cited herein-above, the plea for bail was rejected. I am not prepared to take any different view of the matter. However, the trial Court shall endeavor to dispose of the case as fast as possible. The observations made herein-above are made for the purpose of deciding this application only. The trial Court shall not get influenced by any of the observations made herein-above. The application is rejected. JUDGE sahare