CRIMINAL MISCELLANEOUS No.8082 OF 2001 In the matter of an application under Section 482 of the Code of Criminal Procedure ---------- 1. Mahabir Hazara, Son of Late Nathuni Hazara 2. Ramesh Hazara Son of Mahabir Hazara 3. Bindhya Chandra Hazara @ Bidya Hazara, Son of Mahabir Hazara 4. Meena Devi Wife of Mahabir Hazara 5. Kabita Devi , daughter of Mahabir Hazara, All are residents of village- Parsa, Police Station- Purshottampur, District-West Champaran --------------- Petitioners Versus 1. THE STATE OF BIHAR 2. Anwari Begum, wife of Md. Kamil, resident of Village- Parsa, Police Station- Purshottampur, District-West Champaran ----- Opp.Parties. ---------- For the petitioners: S/Sri Bashishtha Narayan Mishra & Om Prakash, Advocates For the State: Smt. Indu Bala Pandey, A.P.P. -------- P R E S E N T THE HON'BLE MR. JUSTICE RAKESH KUMAR Rakesh Kumar, J. Five petitioners, while invoking inherent jurisdiction of this Court under Section 482 of the Code of Criminal Procedure, have prayed for quashing of an order dated 7.8.1999 passed by the learned Chief Judicial Magistrate, Bettiah in Purshottampur P.S. Case No.79 of 1998, whereby the learned Chief Judicial Magistrate differing with the police report, which was submitted under Section 323 of the Indian Penal Code as non-cognizable offence, has taken cognizable of offences under Sections 313/316 of the Indian Penal Code as well as under Sections 341/323 and 427 of the Indian Penal Code and summoned the accused persons. The petitioners have also prayed for 2 quashing of order dated 8.1. 2001 passed in Cr.Revision No. 287 of 1999 by 3rd Addl.Sessions Judge, Bettiah , West Champaran. By the said order the revision preferred by the petitioners against the order of cognizance dated 7.8.1999 was rejected. 2. Short fact of the case is that on the basis of fardbeyan of Opp.Party no.2, an F.I.R. vide Purshottampur P.S. Case No.79 of 1998 was registered on 4.7.1998 under Sections 447,341, 323 , 504/34 of the Indian Penal Code against all the petitioners. It was alleged in the F.I.R. by the informant that while she was cooking meal in her house, accused persons intruded into her house and dragged her out of the house. She was assaulted. Despite the fact that Opp.Party no.2 was pregnant, accused persons kicked on her abdomen leading to abortion of three months foetus in her womb. On the aforesaid allegation an F.I.R. was lodged and after investigation, the police found the case in respect of other provisions as not true and final form was submitted only under Section 323 of the Indian Penal Code as non-cognizable case. 3. After final report was placed before the learned Magistrate on 7.8.1998, as stated by Sri Bashishtha Narayan Mishra, learned counsel for the petitioners, a protest petition was filed by Opp.Party no.2. After filing of the protest petition, the informant produced some witnesses before the learned Magistrate for recording their statements under Section 164 of the Code of Criminal Procedure and, as such, statements of witnesses were recorded under Section 164 of the Code of Criminal Procedure and finally on the basis of 3 materials available in the case diary as well as on the basis of statements of witnesses recorded under Section 164 of the Code of Criminal Procedure , the learned Magistrate was of the view there were prima facie case against all the accused persons for the offences under Sections 313, 316, 341, 323 and 427 of the Indian Penal Code . 4. Aggrieved with the order of cognizance dated 7.8.1999 passed by the learned Chief Judicial Magistrate, the petitioners preferred a revision before the learned Sessions Judge and the learned 3rd Addl. Sessions Judge vide its order dated 8.1.2001 rejected the revision, i.e. Cr.Revision No.287 of 1999. 5. The petitioners aggrieved with the order of cognizance as well as rejection of their revision petition approached this Court by filing the present petition. 6. Sri Bashishtha Narayan Mishra, learned counsel appearing on behalf of the petitioners, while challenging both the orders, at the very outset submitted that the learned Magistrate had adopted a procedure in the present case, which was alien to the provisions of the Code of Criminal Procedure. It was submitted that after submission of final report, the learned Magistrate was not authorized to allow the complainant to produce the witnesses for recording their statements under Section 164 of the Code of Criminal Procedure. It was submitted that the statement under Section 164 of the Code of Criminal Procedure is required to be recorded during the course of investigation and not after submission of chargesheet. It was further submitted that statement of a witness under Section 164 of the 4 Code of Criminal Procedure should have been recorded at the request of the Investigating Officer and not on the prayer made by the informant. Learned counsel for the petitioners, while pressing this submission has heavily relied on the Judgment of Hon’ble Supreme Court reported in 1999( 3) All P.L.R. 27 . Learned counsel for the petitioner has specifically referred to paragraph 22 of the Judgment, which is as follows: “22. If a magistrate has power to record statement of any person under Section 164 of the Code, even without the investigating officer moving for it, then there is no good reason to limit the power to exceptional cases. We are unable to draw up a dividing line between witnesses whose statements are liable to be recorded by the magistrate on being approached for that purpose and those not to be recorded. The contention that there may be instances when the investigating officer would be disinclined to record statements of willing witnesses and therefore such witnesses must have a remedy to have their version regarding a case put on record, is no answer to the question whether any intending witness can straightway approach a magistrate for recording his statement under Section 164 of the Code. Even for such witnesses provisions are available in law,i.e. the accused can cite them as defence witnesses during trial or the Court can be requested to summon them under Section 311 of the Code. When such remedies are available to witnesses (who may be sidelined by the investigating officers) we do not find any special reason why the magistrate should be burdened with the additional task of recording the statements of all and sundry who may 5 knock at the door of the Court with a request to record their statements under Section 164 of the Code.” 7. In view of the settled law, it is not in dispute that the learned Magistrate had incorrectly permitted the informant in the present case to get the statements of witnesses recorded under Section 164 of the Code of Criminal Procedure after submission of chargesheet. On the aforesaid ground, it has been prayed to quash the order of cognizance as well as order of revisional court. 8. Smt. Indu Bala Pandey, learned Addl.Public Prosecutor appearing on behalf of the State has opposed the prayer of the petitioners. It was submitted by the learned counsel for the State that it is true that in the present case an incorrect procedure was adopted by the learned Magistrate, but at the same time keeping in view the seriousness of the allegation, it is required to remit back the matter before the court below to proceed with the case afresh. It was submitted that in this case a protest petition was also filed by the complainant and there was an option open to the court to proceed with the protest petition treating it as complaint. 9. Besides hearing learned counsel for the parties, I have also perused the materials available on record. Of course, learned counsel for the petitioners has not brought on record the statements of witnesses recorded under Section 164 of the Code of Criminal Procedure which has been recorded after submission of the chargesheet ,but from the order of the revisional court, it appears that after submission of the final report, statements of witnesses were 6 recorded by the learned Magistrate. The Court is of the opinion that the learned Magistrate had adopted an incorrect procedure, particularly keeping in view the law laid down by Hon’ble Supreme Court in Yogendra Nahak’s case ( supra) . In any event, in the present case, the police has submitted final report under Section 323 of the Code of Criminal Procedure and after submission of the chargsheet, a protest petition was filed by the complainant. It was open to the learned Magistrate either to differ with the police report or he would have proceeded with the case treating the protest petition as complaint case, but at the same time, he was not authorized to record the statements of the witnesses under Section 164 of the Code of Criminal Procedure on the prayer of informant that too after submission of the chargesheet by the police. Such statement is to be recorded during the investigation of the case as prescribed under Chapter-XII of the Code of Criminal Procedure , but at the same time on this very ground, the petitioners cannot be absolved from the charges . 10. In the facts and circumstances of the present case, it would be necessary to remit back the matter to the court below to proceed in accordance with law. Accordingly, the order of cognizance dated 7.8.1999 is hereby set aside and the matter is remitted back to the court below with a direction to the learned Magistrate to proceed in accordance with law. It is made clear that statement of any witness under Section 164 of the Code of Criminal Procedure recorded after submission of chargesheet may not be looked into by the court below while proceeding with the case. 7 With the above observation and direction, the petition stands disposed of. Patna High Court, Patna Dated : the 25th August,2010 Nawal Kishore Singh/ N.A.F.R. ( Rakesh Kumar,J.)