Andhra HC (Pre-Telangana)
State: A.C.B. Represented By Inspector ... vs P. Seshagiri Rao And Anr. on 23 November, 2001
Equivalent citations: 2002(1)ALD(CRI)1, 2001(6)ALT401, 2001(2)ALT(CRI)540
Author: B. Sudershan Reddy
Bench: B. Sudershan Reddy
JUDGMENT B. Sudershan Reddy, J.
1. This is an application filed under Section 482 of the Code of Criminal Procedure (for short 'the Code') by the State - A.C.B. represented by the Inspector of Police, Anti Corruption Bureau, Rajahmundry Range, Kakinada to quash or expunge the statement of one P. Seshagiri Rao, respondent No. 1 herein, recorded by the III Additional Judicial Magistrate of First Class, Kakinada in Crl. M.P. No. 2341 of 1999 on 30th October, 1999 in connection with Crime No.6/RC-RJY/99 of A.C.B., Rajahmundry Range, Kakinada, East Godavari District.
2. Before adverting to the question as to whether the petitioner is entitled for any relief in this application, it may be necessary to briefly notice the relevant facts.
3. On 29-4-1999, the first respondent herein who was working as Health Assistant of Pithapuram Municipality at the relevant time, gave a written report to the Deputy Superintendent of Police, A.C.B., Rajahmundry alleging that the second respondent-Commissioner, Pithapuram Municipality demanded him a bribe of Rs.1,000/- to sanction the loan from his P.F. account. In the complaint, it is stated that he is not interested to pay the same and accordingly requested the petitioner herein to take necessary action.
4. The petitioner herein, after getting the antecedents of the respondents verified, registered a case in Crime No.6/RC-RJY/99 under the provisions of the Prevention of Corruption Act, 1988 and a trap was arranged on 30-4-1999. The first respondent-complainant went and offered the bribe which the second respondent-Commissioner received from the first respondent-Complainant and after receiving the pre-arranged signal the raid party went in and conducted phenolphthalein test in which the left hand fingers of the second respondent-Commissioner turned pink. The second respondent-Commissioner produced the bribe of Rs.1,000/- received from his left pocket of the pant and the same was seized before the mediators and the entire pre-trap and post-trap proceedings were duly recorded.
5. It is required to notice that the statements of the first respondent-complainant, mediators and other witnesses were recorded and the investigation into the crime was over and waiting for necessary sanction.
6. Curiously enough, the first respondent-complainant made an application on 30-10-1999 in Crl. M.P. No. 2341 of 1999 straight away before the III Additional Judicial Magistrate of First Class, Kakinada to record his statement under Section 164 of the Code. The learned Magistrate accordingly recorded his statement on 30th October, 1999, wherein the first respondent-complainant admittedly gave a complete go bye to his earlier statement.
7. The act of recording of the statement by the learned Magistrate is impugned in this Criminal Petition.
8. Sri G.Pedda Babu, learned Standing Counsel for the A.C.B., contends that the learned Magistrate has no power or jurisdiction to record the statement of the first respondent herein under Section 164 of the Code un-sponsored by the Investigating Agency. It is submitted that the recording of the statement itself is illegal and the said statement is to be ignored totally and the same cannot be taken into consideration for whatever purposes. The learned Standing Counsel for the A.C.B. would place reliance upon the decision of the Supreme Court in Jogendra Nahak & others Vs. State of Orissa & others1 in support of his submission. The Supreme Court in the said judgment after making an analysis of Sections 160, 164 and 165 to 173 of the Criminal Procedure Code held that "in the scheme of the above provisions there is no set or stage at which a Magistrate can take note of a stranger individual approaching him directly with a prayer that this statement may be recorded in connection with some occurrence involving a criminal offence. If a magistrate is obliged to record the statements of all such persons who approach him the situation would become anomalous and every magistrate court will be further crowded with a number of such intending witnesses brought up at the behest of accused persons." The Supreme Court further held that "if door is opened to such persons to get in and if the magistrates are put under the obligation to record their statements, then too many persons sponsored by culprits might throng before the portals of the magistrate courts for the purpose of creating record in advance for the purpose of helping the culprits." The Supreme Court noted that in the case on hand before it such statements were got recorded before the Magistrate under Section 164 of the Code for the purpose of helping the culprits. The Supreme Court ultimately laid down the law in the following words:
"Thus, on a consideration of various aspects, we are disinclined to interpret Section 164 (1) of the Code as empowering a magistrate to record the statement of a person un-sponsored by the Investigating agency."
(Emphasis is of mine).
9. It is; thus, clear that a Magistrate cannot directly record the statement of a person un-sponsored by the Investigating Agency. Viewed from the said angle, I do not find any difficulty whatsoever to hold in the instant case that the learned Magistrate ought not to have recorded the statement of the first respondent-complainant under Section 164 of the Code. The first respondent-complainant having made the statement earlier under Section 161 of the Code before the Investigating Agency himself went before the learned Magistrate on his own accord and got the statement recorded under Section 164 of the Code. Obviously, the first respondent-complainant was not sponsored by the Investigating Agency for the purpose of recording his statement under Section 164 of the Code.
10. Sri C. Padmanabha Reddy, learned Senior Counsel, however, would place reliance upon the subsequent decision of the Madras High Court in R. Paulsamy Vs. The Superintendent, Narcotic Control Bureau, Chennai and submit that the statement recorded under Section 164 of the Code by the learned Magistrate can be admitted or not is a question to be decided by the court in accordance with law. Each case depends upon its own facts and circumstances. It is contended by the learned Senior Counsel that the power of the Magistrate under Section 164 of the Code to record the statements of persons connected with any criminal case cannot be curtailed.
11. It is true, the Madras High Court after referring to the decision of the Supreme Court in Jogendra Nahak and Others (1 supra) understood the judgment in the manner suggested by the learned Senior Counsel and accordingly held that "the power of the Magistrate under Section 164 of the Code to record the statements of persons connected with any criminal case cannot be curtailed." The observations of the Madras High Court that "though Their Lordships have not fettered the rights of the Magistrate to record the statement under Section 164, Cr. P.C., it is left open to the Court to consider those statements in terms of law and to decide the case", in my considered opinion, do not reflect correctly the ratio laid down by the Supreme Court in Jogendra Nahak and Others (1 supra). The observations made by the Madras High Court, if at all, are traceable to the Judgment in re C.W.Cases 3 in which Govinda Menon, J., of the Madras High Court expressed the view that:
"It is not necessary that the Magistrate should be moved by the police in order that he might record a statement. There may be instances where the police may not desire to have recorded the statement of a witness for some reason or other. In such a case, there is nothing preventing the witness to go to the Magistrate and request him to record his statement and if a Magistrate records his statement and transmits the same to the court where the enquiry or the trial is to go on, there is nothing wrong in his action."
12. But the Supreme Court was not inclined to accept and draw up a dividing line between witnesses whose statements are liable to be recorded by the Magistrate on being approached for the purpose and those not be recorded in exercise of the discretion by the Magistrate. The Supreme Court said so expressly in Jogendra Nahak & others (1 supra). The Supreme Court on a consideration of various aspects including the decisions of the Madras High Court held in categorical terms that "it is not permissible to interpret Section 164 (1) of the Code as empowering a Magistrate to record the statement of a person un-sponsored by the Investigating Agency." Therefore, I am not inclined to rely upon the judgment of the Madras High Court in R. Paulsamy (2 supra) and the law laid down in the said judgment is not inconformity with the judgment of the Supreme Court in Jogenera Nahak & others (1 supra).
13. The Supreme Court in Jogendra Nahak & others (1 supra) upheld the decision of the High Court in disallowing the statements of the four appellants therein to remain on record in the case.
14. Sri C.Padmanabha Reddy, learned Senior Counsel, however, would submit that even if the statement recorded by the learned Magistrate under Section 164 of the Code is to be ignored altogether, the accused still would be entitled to confront the deponent of that statement as provided under Section 145 of the Indian Evidence Act, 1872 (for short 'the Evidence Act').
15. The bonum summum of the submission made by the learned Senior Counsel is that the second respondent-accused herein would be entitled to confront the first respondent-complainant with the statement made by him before the learned Magistrate if he is to be examined as a witness on behalf of the prosecution.
16. Section 145 of the Indian Evidence Act, 1872 reads as follows:
145. Cross-examination as to previous statement in writing:- A witness may be cross-examined as to previous statements made by him in writing or reduced into writing and relevant to matters in question, without such writing being shown to him or being proved; but, if it is intended to contradict him by the writing, his attention must, before the writing can be proved be called to those parts of it which are to be used for the purpose of contradicting him.
17. Evidently, the expression "previous statements made by him in writing or reduced into writing" used in Section 145 of the Evidence Act does not expressly refer to a statement made or recorded either under Section 161 or 164 of the Code. The expression "previous statements made by a witness" obviously is not restricted to the statements made under Section 161 or 164 of the Code, as the case may be. Perhaps, the statement made in writing or reduced into writing need not be before any authority as such.
18. A Division Bench of the Jammu and Kashmir High Court in Sher Chand Vs. State observed that "a court under Section 145 of the Evidence Act, for instance, is entitled to discredit a witness by taking into consideration of his earlier contradictory statement, even though the same has been recorded by a person not authorised to do so by law..............Section 145 of the Evidence Act, does not specifically exclude a previous contradictory statement recorded by a person or tribunal not having jurisdiction to record the same." The Jammu and Kashmir High Court relied upon various decisions of the other High Courts including the decision of a Division Bench of the Orissa High Court in State Vs. Pareswar Ghasi5.
19. At this stage, it may not be necessary to express any opinion whatsoever as to whether the second respondent-accused would be entitled to confront the first respondent-complainant with the statement made by him before the learned Magistrate under Section 164 of the Code. Such a situation had not arisen.
20. Suffice it to hold that the court need not express any opinion at this stage as to whether that statement can be used for the limited purpose of confronting the first respondent-complainant if he is proposed to be examined as a witness on behalf of the prosecution. But, it is clear that the statement recorded under Section 164 of the Code can never be used for any other purposes whatsoever.
21. The questions are left open.
22. Interest of justice would be met in the instant case by declaring that the learned Magistrate had committed a patent error in recording the statement of the first respondent-complainant under Section 164 of the Code. The statement so recorded under Section 164 of the Code cannot be allowed to remain on record. The act of recording of the statement by the learned Magistrate is accordingly set aside. The statement so made by the first respondent-complainant before the learned Magistrate cannot be treated to be a statement recorded under Section 164 of the Code.
23. The proceedings under Section 164 of the Code recording the statement of the first respondent-complainant herein are accordingly quashed.
24. The Criminal Petition is accordingly allowed.