The Allahabad High Court has rejected an application on the reason that that sole object of statement under Section 161 Cr.P.C is to investigate allegations and to prepare case diary for purpose of consideration by Court at stage of cognizance and summon as well as use to show contradictions during trial.
A Single Bench of Justice Saurabh Shyam Shamshery passed this order while hearing an application under section 482 filed by Faisal Ashraf.
G.S Chaturvedi, Senior Advocate assisted by Man Singh for applicant while pressing prayer to quash cognizance order dated 09.06.2020 in Criminal Case whereby Court of Chief Judicial Magistrate, Gautam Buddh Nagar took cognizance of offence under Sections 504 and 506 I.P.C on charge sheet dated 14.02 .2020 submitted in Case Police Station- Noida Sector-20, District- Gautam Buddh Nagar, as well as impugned summoning order dated 20.06.2022 whereby Sessions Judge, Gautam Budh Nagar has dismissed criminal revision mentioned only on a ground that charge sheet was submitted only on basis of written statements of witnesses which cannot be considered to be a statement recorded under Section 161 CrPC which mandatory requires that investigating officer will examine oral in person supposed to be acquainted with facts and circumstances of the case and police officers will adduce in writing any statement made to him in course of examination which may also include statement recorded by audio and video electronic means, therefore, entire investigation is contrary to procedure prescribed in Code of Criminal Procedure and as such charge sheet becomes illegal.
The above submissions have been opposed by Mohit Singh, counsel for opposite party No 2 that witness has given his written statement before I.O, however, she was further examined by I.O by way of asking relevant questions also as well as that there is no specific bar that examination under Section 161 CrPC has to be oral only and not in written form.
Deepak Kapoor, A.G.A has also supported arguments advanced by counsel for opposite party No 2.
The Court noted that in case, I.O has visited the place of witnesses Smt Manju Rani and Talat Zameer who handed over their written statements which were transcribed by I.O in case diary in their presence as well as original statements were made part of case diary also. I.O asked few questions to witnesses and answers thereof were also reduced into writing in case diary, therefore, only lacuna, if exists, was that witnesses have not mentioned their statements orally i.e stated in their own voice.
The Court said that,
The purpose of statements made under Section 161 Cr.P.C is to investigate an occurrence to find out culprits. So far as evidentiary value of these statements is concerned, it would only for the purpose of contradiction, if any, committed by said witness during his testimony in trial. Other than that, it has no evidentiary value.
Word “orally” also includes a statement recorded by audio video also. Purpose of ‘to examine orally’ is to ensure that I.O may record whatever is said by witness to him or relevant part of it and which has to be reduced into writing by him to avoid any kind of coercion, misrepresentation or mischief. A written statement send by post or deliver by another person may not fall under ‘to examine orally’ but a written statement submitted by witness himself to I.O and I.O has assured its genuineness and same, if reduced in writing, shall be a statement duly recorded under Section 161 CrPC.
The word ‘may’ used in Section 161 Cr.P.C gives discretion to police officers to examine orally any person as well as may reduce into writing any statement made to him, therefore, he has discretion not to reduce into writing the entire statement made to him or he may reduce into writing only gist of statement. Sole object of statement under Section 161 Cr.P.C is to investigate allegations and to prepare case diary for purpose of consideration by Court at stage of cognizance and summon as well as use to show contradictions during trial.
“In view of above discussion, there is no illegality in taking a written statement of a witness under Section 161 Cr.P.C, when it was reduced in recording in case diary in presence of witnesses as well as I.O has made questions also which are also reduced in writing along with answers. The I.O has taken sufficient precautions to ensure it to be a written statement of witnesses only.
The judgments relied upon by the Senior Counsel for applicant has no bearing as Singhara Singh (supra) was related to statement recorded under Section 164 Cr.P.C and Noor Mohammed (supra) states that procedure prescribed must be followed and as discussed above in present, procedure has been substantially followed in case”, the Court observed while rejecting the application.