IN THE HIGH COURT OF JUDICATURE AT PATNA CR. WJC NO.661 OF 2010 LALAN JAISWAL @ LALAN PRASAD VERSUS STATE OF BIHAR & ORS WITH CR. WJC NO.307 OF 2011 SANTOSH KUMAR SINGH @ LALU THAKUR & ANR. VERSUS THE STATE OF BIHAR & ORS ----- For the petitioners :- Mr. S.B.K. Mangalam, Advocate For the State :- Mr. Anjani Kumar (AC to SC 13 Mr. R.R. Tiwary (AC to AAG 12) ******** PRESENT HON’BLE MR. JUSTICE SHAILESH KUMAR SINHA S.K.SINHA,J. In both the above writ applications a common issue has been raised that the chargesheet submitted in Saran Marhaura P.S. Case No. 120 of 2005 registered for the alleged offence under sections 302/34 of the Indian Penal Code and section 27 of the Arms Act is not sustainable in law since the police submitted the chargesheet without completing the investigation as statement of one Md. Aalim was not reduced in writing and incorporated in police diary, as such, the submission of the charge sheet was bad in law and the same deserves to be quashed. Learned counsel for the petitioners submits that in terms of the provisions of Section 161 of the Code of Criminal Procedure (hereinafter referred to as the Code) in course of investigation, if any witness is examined the statement of such witness is must to be reduced in writing and incorporated in the diary. It is further submitted that 2 neither the statement of the Md. Aalim which was taken on 12th of January 2009 was reduced in writing nor incorporated in the diary nor investigating officer took any steps under the law to get his statement reduced in writing and incorporated in the diary, as such, the submission of the chargesheet is bad in law and taking further cognizance on receipt of such charge sheet by the Chief Judicial Magistrate is equally not sustainable in law. Moreso, the statement of the said witness ought to have been reduced in writing and incorporated in diary as directed by the concerned Inspector General of Police but the same was not carried out. The above inaction on the part of the Investigating Officer would show that that the investigating Officer was mainly interested to submit charge sheet somehow or the other which resulted in serious legal infirmity. Learned counsel for the State on the other hand submits that the statement of the said witness namely Md. Aalim was reduced in writing and incorporated in the case diary at Paragraph–15. However, on the second time the said Md. Aalim gave his statement on 12.01.2009, however, on again being noticed for giving his statement on 18.06.2010, he declined to give his statement stating that he has already given and will give his statement again if any in court only. 3 Considering the rival submissions of the parties, it appears that the controversy relates to the recording of the statement of Mr. Aalim under section 161 of the Code. The submission of the petitioners that in case the statement is not recorded and chargesheet is submitted without recording the statement of aforesaid Md. Aalim and incorporating in diary the submission of the chargesheet is bad in law. In reply of the above submission, learned counsel for the State submitted that under the provisions of section 161 of the Code police is not bound to record each and every statement of witness given under section 161 of the Code, however, in case the statement is recorded it has to be incorporated in the diary. Reliance has been placed on a decision in the case of Zahira Habibulla H. Sheikh & Anr. Vs. State of Gujarat & Ors, as reported in AIR 2004 (SC) 3114 (Paragraph 74) wherein the Apex Court while considering the issue with regard to recording of statement under section 161 of the Code held as follows : “It is not obligatory on the part of the police officer to record any statement made to him. He may do so if he feels it necessary. What is enjoined by the section is a truthful disclosure by the person who is examined”. Reference may also be made to a decision of the 4 Apex Court in the Case of Paramjit Singh @ Mithu Singh Vs State of Punjab. Through Secretary (Home), as reported in AIT 2008 (SC) 441 (Paragraph-13) wherein the Apex Court categorically held as follows : “it is well settled that even a defect, if any, found in investigation, however, serious has no direct bearing on the competence or the procedure relating to the cognizance or the trial. A defect or procedural irregularity, if any, in investigation itself cannot vitiate and nullify the trial based on such erroneous investigation”. In view of the above, the submission of the petitioners that on account of the defect in the investigation for not recording the statement of Md. Aalim the chargesheet must fail although denied by the State that the statement of the said witness was recorded in the case diary in paragraph 15, cannot be sustained in law. In the facts and circumstances and in view of the discussions as made above, I do not find any merit in the writ application. Accordingly, both the writ applications stand dismissed. The Patna High Court 18th of July, 2011 Manish/ A.F.R. ( Shailesh Kumar Sinha, J.)