This revision challenges the rejection of an application under Section 311 Cr.P.C. The single-judge court held that the prosecution failed to prove the Section 164 statement, thus the accused had no right to recall the witness. The revision was dismissed as having no force of law.
None granted.
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Date | Office Notes, reports, orders or proceedings or directions and Registrar’s order with Signatures |
COURT’S OR JUDGES’S ORDERS |
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| CRLR No.200 of 2019 Hon’ble R.C. Khulbe, J. Mr. B.S. Bhandari, learned counsel for the revisionist. Mr. V.K. Jemini, learned DAG for the State. This revision, preferred under Sections 397/401 of the Code of Criminal Procedure, 1973 (hereinafter to be referred to as ‘the Cr.P.C’) is directed against the order dated 01.03.2019 passed by the learned 1stAddl. Sessions Judge, Roorkee, Haridwar, in S.T.No.147 of 2017, State vs. Devendra and others. Facts necessary to resolve the controversy involved in this revision are that an FIR was lodged with Police Station Gangnahar, Roorkee on 16.04.2017 against the revisionist under Sections 366 and 370 IPC, which is registered as FIR No.122 of 2017; after completion of the investigation charge sheet was submitted; accordingly, the concerned court took the cognizance and charges were framed. The prosecution produced all the witnesses; after completion of the prosecution evidence, the statement of accused was recorded under Section 313 Cr.P.C.; after that the revisionist filed an application under Section 311 Cr.P.C.; the trial court after hearing both the parties rejected the same vide order dated 01.03.2019. Aggrieved by it, the present revision is preferred. It is submitted by learned counsel for the revisionist that after lodging the FIR, the statement of prosecutrix was recorded under Section 164 Cr.P.C. before the concerned Magistrate in which the concerned Magistrate has given a certificate in the bottom of the statement. To prove the statement recorded under Section 164 Cr.P.C, it is necessary for the concerned Magistrate to verify whether the prosecutrix was well aware about the Hindi language or not. |
| I have also gone through the statement of |
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| prosecutrix recorded under Section 164 Cr.P.C. (Annexure No.3); from the perusal of the statement, it is clear that, the above statement was recorded by the 1stJudicial Magistrate, Roorkee on 19.04.2017; a certificate is also given in the bottom of the statement, which is duly signed by the concerned Magistrate. Section 164 Cr.P.C. relates recording of confessions and statements; the Parliament has used specific two words in the heading: - A. Confessions B. Statements. From the perusal of the above section, it is clear that the concerned Metropolitan Magistrate/Judicial Magistrate, as the case may be, has a power to record the confessional statement as well as the statement of any person. As regard to the recording of statement is concerned, the concerned Magistrate is obliged to record the statement as provided for recording the evidence under the Evidence Act. It means, whenever any statement is recorded under Section 164 Cr.P.C., the concerned Magistrate has a power to administer oath, while as regard to the confessional statement is concerned, there is no such oath is required. It is settled principle of law that the statement recorded under Section 164 Cr.P.C. is not a substantive piece of evidence. Apart from that, it is a document of the prosecution; it was the duty of the prosecution to prove its document before the trial court. If, the prosecution has failed to prove any document, the accused has no right to recall the witness for proving the document by invoking the provision of Section 311 Cr.P.C. The concerned court rightly rejected the application filed under Section 311 Cr.P.C.; there is no illegality in the impugned order. Resultantly, the revision, having no force of law, is hereby dismissed. Pending application, if any, stands disposed (R.C. Khulbe, J.) 07.10.2021 |
BS
2 issues framed by the court
Whether an accused is entitled to recall a witness under Section 311 Cr.P.C. to prove a document under Section 164 Cr.P.C. if the prosecution failed to prove it before the trial court.
Whether a certificate regarding language awareness is necessary for admissibility of a statement recorded under Section 164 Cr.P.C.
Colour shows how this judgement treated each authority
None cited in textReferred
2 provisions across 1 enactments
Devendra and others
State
R.C. Khulbe
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
