Jharkhand High Court
Mohan Oraon vs State Of Jharkhand .... Opp. Party on 28 February, 2024
Author: Anil Kumar Choudhary
Bench: Anil Kumar Choudhary
1 Cr.M.P. No.398 of 2024
IN THE HIGH COURT OF JHARKHAND AT RANCHI
Cr.M.P. No. 398 of 2024
Mohan Oraon, aged about 27 years, S/o Late Etwa Oraon, R/o -H. No.
58, Vill-Kaimbo, P.O. -Kaimbo, P.S. -Mandar, Distt -Ranchi -835214,
Aad. No. 7337 2882 6575.
.... Petitioner
Versus
State of Jharkhand .... Opp. Party
PRESENT
HON'BLE MR. JUSTICE ANIL KUMAR CHOUDHARY
.....
For the Petitioner : Mr. Shubhashis Rasik Soren, Advocate : Ms. Shobha G. Lakra, Advocate : Mr. Avinash Kumar, Advocate : Ms. Mrinalini Tete, Advocate : Mr. Robin, Advocate For the State : Mr. Shailesh Kr. Sinha, Addl. P.P. .....
By the Court:-
1. Heard the parties.
2. This criminal miscellaneous petition has been filed invoking the jurisdiction of this Court under Section 482 Cr.P.C. with a prayer to quash the order dated 19.01.2024 passed by the Special Judge, POCSO Act Cases in Spl. POCSO Case No. 165 of 2023 arising out of Mandar P.S. Case No. 89 of 2023 registered for the offences punishable for the offences punishable under Section 341/354/427/506 of the Indian Penal Code and under Section 8/12 of the POCSO Act whereby and where under the learned court rejected the petition of the petitioner who is the accused person of the case under Section 207 Cr.P.C.
3. The brief facts of the case is that the petitioner who is the accused person of the case filed a petition under Section 207 2 Cr.M.P. No.398 of 2024 Cr.P.C. contending therein that he has not been supplied with the police report, statement of the informant recorded under Section 164 Cr.P.C. and statement of the witnesses recorded under Section 161(3) Cr.P.C. The learned Additional Judicial Commissioner-
cum-Special Judge, POCSO Act Cases, Ranchi vide order dated 19.01.2024 in POCSO Case No. 165 of 2023 disposed of the said petition by observing that on 08.12.2023, police paper has been received by the counsel of the petitioner whose name has been mentioned in the order sheet. The copy of the police report submitted under Section 173 Cr.P.C., the documents which were supplied as police papers to the accused which contained the photo copy of (i) written report of the informant/victim, (ii) re- statement of the informant-victim, (iii) statement of the witnesses recorded under Section 161(3) Cr.P.C. namely Shankar Oraon, Vigi Orain and Sunil Oraon and some other documents. The counsel of the petitioner has also been supplied the Admit Card issued by the Jharkhand Academic Council, Ranchi of the victim and photocopy of the charge sheet submitted by the I.O. of the case but declined to supply the copy of the statement recorded under Section 164 Cr.P.C. in the interest of the victim child and as the police paper has already been supplied, the petition filed under Section 207 Cr.P.C. was rejected.
4. It is submitted by the learned counsel for the petitioner that the learned trial court has only supplied the copy of the case diary to which the learned counsel objected to and requested to supply the copy of the documents which has been mandated under Section 3 Cr.M.P. No.398 of 2024 207 Cr.P.C. It is next submitted by the learned counsel for the petitioner that Section 172 Cr.P.C. bars the accused or his counsel for seeing the case diary.
5. Relying upon the Judgment of a Division Bench of this Court in the case of Barun Pandit Vs. State of Jharkhand, reported in (2014) SCC Online Jhar 2803, it is submitted by the learned counsel for the petitioner that the Division Bench of this Court has inter-alia observed that if anybody is committing breach of the provision of the Jharkhand State Police Manual which requires that the statement under Section 161 of the Cr.P.C. is to be recorded separately by the I.O. of the case, commits the breach of said mandate of law and in such cases departmental inquiry should be started by the high ranking officer. It is next submitted by the learned counsel for the petitioner that the trial court has not sought any reply from the I.O. of the case, as the purported statement under Section 161(3) Cr.P.C. is a version written on case diary and thus is not in consonance with Section 161(3) Cr.P.C. and the said statement is not in terms of the Judgment passed in the case of Barun Pandit Vs. State of Jharkhand (supra). It is then submitted by the learned counsel for the petitioner that the learned trial court has erroneously held that the petitioner is not entitled to the statement of the informant-victim recorded under Section 164 Cr.P.C. as the Hon'ble Supreme Court of India in the case of A. Vs. State of Uttar Pradesh and Another, reported in (2020) 10 SCC 505 has held that right to receive a copy of the statement recorded under Section 164 Cr.P.C. will arise only after 4 Cr.M.P. No.398 of 2024 the cognizance is taken and at the stage contemplated by Section 207 and 208 Cr.P.C. and not before it. It is next submitted that if the petitioner is not provided with the statement of the informant recorded under Section 164 Cr.P.C., it will cause great prejudice to the petitioner. Hence, it is submitted that the prayer as made for by the petitioner be allowed.
6. The learned Addl. P.P. on the other hand vehemently opposes the prayer to quash the order dated 19.01.2024 passed by the Special Judge, POCSO Act Cases in Spl. POCSO Case No. 165 of 2023 arising out of Mandar P.S. Case No. 89 of 2023 registered for the offences punishable for the offences punishable under Section 341/354/427/506 of the Indian Penal Code and under Section 8/12 of the POCSO Act whereby and where under the learned court rejected the petition of the petitioner who is the accused person of the case under Section 207 Cr.P.C. It is submitted by the learned Addl. P.P. that in the impugned order dated 19.01.2024 in POCSO Case No. 165 of 2023, the learned trial court has in no uncertain manner has mentioned that the lawyer of the petitioner who is the accused in the case has received the police report under Section 173 Cr.P.C. beside the other documents including the statement of the witnesses recorded under Section 161(3) Cr.P.C. and the same has remained on disputed. Hence, it is submitted by the learned Addl. P.P. that there is no merit in the contention of the petitioner that the statement of the witnesses were not recorded under Section 161 Cr.P.C. and at best, the same can be taken as a defence during the trial of the case and further 5 Cr.M.P. No.398 of 2024 clarification can be sought from the I.O. of the case, as and when he comes to the dock to depose as a witness in the case; during the trial. Hence, it is submitted that this criminal miscellaneous petition being without any merit be dismissed.
7. Having heard the submissions made at the Bar and after going through the materials in the record, this Court finds that in the petition filed by the petitioner in the trial court, three prayers were made i.e. (i) police report, (ii) statement of informant recorded under Section 164 Cr.P.C. & (iii) statement of witnesses recorded under Section 161(3) Cr.P.C.
8. After perusal of the record, this Court finds that in the impugned order itself the learned trial court itself has in no uncertain manner mentioned that the learned counsel for the petitioner appearing in the trial court has received the copy of the police report under Section 173 Cr.P.C. and the statement of the witnesses recorded under Section 161(3) Cr.P.C. In view of such categorical mentioning of the facts by the learned Special Judge, POCSO Act Cases, Ranchi, this Court do not finds any merit in the contention of the petitioner that the copy of the police report submitted under Section 173 Cr.P.C. or for that matter, the statement of the witnesses recorded under Section 161(3) Cr.P.C. has not been supplied to him. The petitioner, if still has any doubt, he can ask any question regarding whether or not the statement which was supplied to him as the copy of the statement of the witnesses recorded under Section 161(3) Cr.P.C. to the I.O. of the case during his cross-examination; if the case goes on for a trial. 6 Cr.M.P. No.398 of 2024
9. So far as the prayer for supplying the copy of the statement recorded under Section 164 Cr.P.C. is concerned, the Hon'ble Supreme Court of India in the case of A Vs. State of Uttar Pradesh and Another (supra) has observed as under in para -19 to 21:-
"19. Thus, merely because the charge-sheet was filed by the time the High Court had passed the order [Chinmayanand v. State of U.P., 2019 SCC OnLine All 6594] in the present matter, did not entitle Respondent 2 to a copy of the statement under Section 164 CrPC.
20. That apart, the reason that weighed with the High Court in placing reliance on the decision [Raju Janki Yadav v. State of U.P., 2012 SCC OnLine All 856 :
(2012) 6 All LJ 486] of the Division Bench of the High Court rendered in the year 2012 which was before the directions were passed by this Court in Shivanna [State of Karnataka v. Shivanna, (2014) 8 SCC 913 : (2014) 6 SCC (Cri) 420] was completely incorrect. As logical extension of the directions passed by this Court, no person is entitled to a copy of statement recorded under Section 164 CrPC till the appropriate orders are passed by the court after the charge-sheet is filed.
21. The right to receive a copy of such statement will arise only after cognizance is taken and at the stage contemplated by Sections 207 and 208 CrPC and not before. The application of Respondent 2 was, therefore, rightly rejected by the Additional Sessions Judge and the order so passed did not call for any interference by the High Court."
Wherein the Hon'ble Supreme Court of India has categorically mentioned that the direction of the Supreme Court that no person is entitled to a copy of the statement recorded under Section 164 Cr.P.C. till the appropriate orders are passed by the court is till the charge sheet is filed but the right to receive a copy of the statement recorded under Section 164 Cr.P.C. will arise only after cognizance is taken and at the stage contemplated by Section 207 and 208 Cr.P.C. and not before.
7 Cr.M.P. No.398 of 2024
10. Now in this case, undisputedly the cognizance of the offence has been taken by the POCSO court on 06.12.2023 and in this case the petition under Section207 of the Code of Criminal Procedure was filed on 05.01.2024 that is well after the cognizance of the offence was taken by the learned Special Judge. Therefore, this Court is of the considered view that the learned Special Judge, POCSO Act Cases has committed an illegality by not allowing the copy of the statement recorded under Section 164 Cr.P.C. as prayed for by the petitioner.
11. Accordingly the order dated 19.01.2024 passed by the Special Judge, POCSO Act Cases in Spl. POCSO Case No. 165 of 2023 arising out of Mandar P.S. Case No. 89 of 2023 is set aside so far as it relates to the rejection of the prayer of the petitioner to supply the copy of the statement recorded under Section 164 Cr.P.C. only and the learned Special Judge, POCSO Act Cases is directed to supply a copy of the statement of the victim recorded under Section 164 Cr.P.C. to the petitioner within 15 days from the date of receipt/production of copy of this order.
12. This criminal miscellaneous petition is disposed of accordingly.
(Anil Kumar Choudhary, J.) High Court of Jharkhand, Ranchi Dated the 28th February, 2024 AFR/Sonu-Gunjan/-