Sharif Sah vs The State of Bihar and Others

Loknath Prasad, J.—This is an application u/s 397 read with Section 401 of the Code of Criminal Procedure for setting aside the order dated 8.10.1993 passed by Sri. D.N. Chakravarty, 3rd Additional Sessions judge, Darbhanga in Cr. Rev No. 331/93 and consequently the order dated 4.12.1993 passed by the S.D.J.M., Benipur in Misc. Case No. 5/93.

The facts in short giving rise to this application are that the Petitioner lodged F.I.R. on 14.5.1992 with an allegation that his younger brother Nuro Sah was murdered by several accused persons as has been mentioned in the F.I.R. and on that basis Ghanshyampur P.S. Case No. 96/92 was instituted. The police, after investigation, submitted charge-sheet on 28.8.1992 but as some of the accused persons were absconding so investigation was going on against them so a supplimentary charge sheet was submitted, it is also alleged that the S.D.J.M. took cognizance of the offence on 14.12.92 and the case was transferred to the Court of Sri N. Prasad, Judicial Magistrate, Ist Class for committal enquiry. Subsequently a petition was filed in the Court of S.D.J.M., Benipur for recording the statement of some of the witnesses who are opp. party Nos. 2 to 5 u/s 164 of the new Code of Criminal Procedure. The S.D.J.M. vide his order dated 13.5.1993 rejected the petition with an observation that the cognizance of the offence has already been taken up and the case was transferred to 14.12.1992 to the Court of Sri N. Prasad, Judicial Magistrate for commitment and investigation has already been completed and the statement of those witnesses, who want that their statement may be recorded u/s 164 of the New Code of Criminal Procedure has already been recorded by the police during investigation and as such there was no necessity for recording their statement u/s 164 of the New Code of Criminal Procedure and thus rejected the prayer.

Being aggrieved by this rejection order a revision was preferred by opp. party Nos. 2 to 5 bearing Cr. Rev. No. 331/93 which was finally disposed by the 3rd Additional Sessions Judge, Darbhanga vide his order dated 8.10.1993 and the revision application was allowed with a direction for recording the statement u/s 164 of the New Code of Criminal Procedure on the strength of an authority of our own High Court reported in 1989 B.B.C.J. 605 and also for the reason that the enquiry or the trial of the case concerned has not yet been taken up. Against this very order, this revision application has been preferred and the main ground for setting aside this order is that the order is apparently misconceived and bad in law and against the provision of Section 164 of the New Code of Criminal Procedure mainly for the reason that the cognizance of the offence which is exclusively triable by the Court of Sessions has already been taken up on 14.12.1992 and the case is pending for committal enquiry after furnishing police paper as required u/s 207 of the Code. In that view of the matter, the investigation was complete and a judical enquiry was already in progress and as such at this stage the statement of the witnesses u/s 164 of the New Code of Criminal Procedure could not be recorded. In pursuance of the order of this Court, opp. party Nos. 2 to 5 entered appearance and they contested this proceeding before this Court but they have not filed any show cause or counter affidavit.

For decision of this short matter, this much can be said that admittedly, a criminal case bearing Ghanshyampur P.S. Case No. 56/92 was instituted regarding murder of the brother of the Petitioner, who was the first informant as against several accused persons and admittedly charge-sheet was submitted after investigation as against some of the accused persons and cognizance of the offence was already taken on 14.12.1992 and the case was transferred to the Court of Sri N. Prasad, Judicial Magistrate, 1st Class for committal enquiry. After that a petition was filed by opp. party Nos. 2 to 5 for recording their statements u/s 164 of the New Code of Criminal Procedure before the S.D.J.M., Benipur but the Court below rejected that petition on the ground that the investigation has already been completed, cognizence of the offence has already been taken and so there is no justification for recording of the statements of the witnesses u/s 164 of the New Code of Criminal Procedure. The 3rd Additional Sessions Judge, Darbhanga vide impugned order dated 8.10.1993 passed in Cr. Rev. No. 331/93 allowed the prayer and a direction was given for recording the statements of the witnesses for the reason that until now enquiry or the trial not been taken up and the statements can be recorded even after investigation in view of the authority of our own High Court reported in 1989 B.B.C.J. 605 (Ram Khelawan Singh v. State of Bihar). No doubt a Bench of this Court has observed that in view of the plain reading of Section 164 of the New Code of Criminal Procedure the statement of the witnesses u/s 164 of the Code can be recorded either during police investigation or any time afterwards before the commencement of the enquiry or the trial. It was urged by the learned Counsel appearing on behalf of the opposite parties that admittedly, the trial has not yet been taken up and the case was not committed to the Court of Sessions when the petition for recording the statement of the witnesses was filed and also in view of the provisions under the New Code of Criminal Procedure there is no scope for committal enquiry, so the Additional District and Sessions Judge was perfectly justified in ordering for recording of the statements of the witnesses.

On the other hand, learned Counsel for the Petitioner Mr Ajay Thakur urged that there is no two opinion that the statement of the witnesses could be recorded u/s 164 of the New Code of Criminal Procedure even after completion of the investigation but there is a clear bar that the statement could not be recorded if the enquiry of the trial has commenced and the revisional Court misconstrued the entire provisions of enquiry and took an erroneous view that the enquiry has not started. It was also submitted that the moment the charge sheet is submitted and the case is transferred after cognizance to the Court of Judicial Magistrate, Ist Class, than certainly the enquiry commence in view of the provisions of Sections 207 and 209 of the Code of Criminal Procedure and in support of his contention he relied upon the decision of the Supreme Court reported in State of Uttar Pradesh Vs. Lakshmi Brahman and Another, , wherein the Supreme Court after careful consideration of the entire provisions of the New Code, was of the view that the moment charge-sheet is submitted and the cognizance of the offence is taken and the case is exclusively triable by the Court of sessions, then a duty is cast on the Magistrate u/s 207 of the Code of Criminal Procedure that necessary police papers should be supplied to the accused persons and on being satisfied that the police papers have already been supplied or if at all could not be supplied, then the obligation is cast on the Magistrate to got the police paper as required under the law to be supplied to the accused persons and after that he will commit the case to the Court of Sessions and if he finds that the offence is triable exclusively by the Court of Sessions.

So it can be said that the duty of the Magistrate for supplying the police paper has to be discharged in judicial manner and it is a judicial obligation provided under the law and it is certainly not an administrative function as decided by the Supreme Court and as such in the instant case if the case was transferred to the Court of Judical Magistrate, Ist Class after taking cognizance, then it can be said that the enquiry as defined u/s 2G of the Code has already started for the limited purpose i.e. for exercising the judical discretion or supplying the relevant copies of the police paper and only after that if the case is exclusively triable by the Court of Sessions, then necessary commitment order may be passed. In that view of the matter, when the petition was filed before the S.D.J.M. concerned, for recording the statement of the witnesses u/s 164 of the New Code of Criminal Procedure then certainly the enquiry as defined u/s 2G of the Code of Criminal Procedure had already commenced before the learned Judicial Magistrate, may be for the limited purpose i.e. for supply of police papers and also for passing necessary commitment order but if it is an enquiry under the Code, then in any view of the matter the statement of the witnesses could not be recorded u/s 164 of the New Code of Criminal Procedure even on plain reading of the section. So, there is no doubt in my mind that the learned Additional Sessions judge while allowing the revision application, completely misdirected himself and overlooked the provisions of Sections 207 and 209 of the Code of Criminal Procedure and also has not been able to correctly appreciate the nature of enquiry and when it will commence.

In the result, this application will succeed and the order dated 8.10.1993 passed in Cr. Rev. No. 331/93 through which direction was given for recording the statements of the witnesses to the S.D.J.M. concerned is set aside as apparently bad in law and consequently the subsequent order dated 4.12.1993 passed in Misc. Case No. 5/93 by S.D.J.M. Benipur in pursuance of the order passed in Cr. Rev. No. 331/93 will also not stand and this order is also set aside.

In the result, this application is allowed but both the parties will bear their own cost.