High Court
Legal Reasoning
( 6 ) crwp830.25Section 164 of the Cr.P.C. provides for recording of confession andstatement before the Magistrate. A question, therefore, whetherstatement made under section 164(5) can be taken on record and readas evidence in the trial. No doubt, section 80 of the Evidence Actprovides that confession or statement recorded before the Magistrate, isto be taken as genuine. Statement under section 164 of the Cr.P.C. is astatement recorded on oath, whether that by itself makes that statementadmissible in evidence without examining author of the statement.10.This Court finds that when witness is produced by theprosecution, he is cross-examined by the accused to check the varsity ofthe statement. Cross-examination is an integral part of fair trial. In thepresent case PW-6 was examined before the Court and still his statementunder section 164 was not exhibited through him. There is no reason asto why it was not produced in evidence. Certainly, it is for that theaccused could not cross-examine the said witness on that document. Sofar as case of Priyanka is concerned, she is not examined at all in thetrial. The accused is, therefore, not in a position even to confront her incross-examination. It is trite law that no evidence can be directly takenon record without giving an accused an opportunity to cross-examinesuch witness. In the present case it is clearly seen that the accused is ( 7 ) crwp830.25not given an opportunity to cross-examine the persons whose statementsare sought to be exhibited and proved. The statement under section 164of the Cr.P.C. though is recorded by the Magistrate; it is still during thecourse of investigation and not in the proceeding. 11.Merely because the statement is recorded by the Magistrateis no reason to exhibit the document directly. When opportunity is notgiven to the accused to confront the witness, it would be unfair to relyupon such evidence. In the present case, it is also not clear as to whyPW-6 was not shown the documents i.e. his statement under section 164of the Cr.P.C. So far as witness Priyanka is concerned, it is only statedthat she is young student and residing at different place, is no reasonnot to examine her and more so, to take her statement under section164 of the Cr.P.C. as evidence without examining her. This Court findsthat the reasoning of the Sessions Court is not proper and correct. Inany case to exhibit the documents without giving opportunity to theaccused is totally against fair trial. This Court finds substance insubmissions of learned Advocate for the petitioner. This Court is clearlyof the opinion that the learned Sessions Judge has erred in passing theorder. The order deserves to be quashed and set aside.
Arguments
( 1 ) crwp830.25IN THE HIGH COURT OF JUDICATURE AT BOMBAYBENCH AT AURANGABADCRIMINAL WRIT PETITION NO. 830 OF 2025Madhav s/o. Dattaram Pawle..PetitionerAge. 43 years, Occ. Business,R/o. Palasgaon, Tq. Umari andDist. Nanded.VERSUSThe State of Maharashtra..RespondentThrough the Police Station Officer,Umari Police Station, Tq. Umari,Dist. Nanded.Mr. R.M. Bhagwat h/f. Mr. Ganesh P. Shinde, Advocate for the petitioner.Ms.A.S. Deshmukh, APP for the respondent-State.CORAM:KISHORE C. SANT, J.RESERVED ON:11.08.2025PRONOUNCED ON:08.09.2025ORDER :-01.By way of filing this petition, the petitioner-original accusedhas approached this Court, challenging a common judgment and orderdated 03.04.2025, passed by the learned Additional Sessions Judge,Bhokar, on applications Exhs. 88 and 89 in Sessions Case No. 39 of 2021. ( 2 ) crwp830.25By way of the impugned order, the learned Sessions Judge has allowedthe applications filed by the prosecution.02.Brief facts in short are that the accused is facing trial for theoffences punishable under sections 302, 120-B and 506 of the IndianPenal Code. One Sambhaji Wankhede lodged an FIR with the PoliceStation, Umari. It is alleged that his wife, co-accused was having extramarital affair with the petitioner. It is alleged that because of that on18.04.2020 they murdered mother of the informant. On the basis ofthat, crime came to be registered on 25.04.2020. The petitioner came tobe arrested on 27.04.2020. Presently, the petitioner is on bail. Afterfiling of the charge-sheet, the case is registered as Sessions Case No. 39of 2021. The prosecution led its evidence and filed evidence close pursis.The matter was posted for recording statement under section 313 of theCr.P.C. 03.The prosecution, thereafter, filed applications Exhs. 88 and89. It is prayed that during the course of trial, statements under section164 of the Cr.P.C. of the informant came to be exhibited and the samebe read in evidence. It is stated that due to oversight the statement ofthe informant (PW-6) under section 164 of the Cr.P.C. was not confronted ( 3 ) crwp830.25and therefore the same be exhibited and read in evidence. It is alsoprayed by application Exh.89 that statement of Supriya Wankhede, notexamined in the trial, recorded under section 164 of the Cr.P.C. also beexhibited.04.The learned Sessions Judge, by way of the impugnedcommon order was pleased to allow both the applications.05.The learned Advocate for the petitioner vehemently arguedthat when PW-6 was examined, the document which is sought to beexhibited is not exhibited during his examination in the Court. Theaccused, thus, lost opportunity to confront on the said document.Without proving the contents of said statement, said document cannot beexhibited and read in evidence. Another statement of daughter of theinformant recorded under section 164 of the Cr.P.C. is also sought to beexhibited and be read in evidence without examining her in the Court onoath. He submits that the statements cannot be exhibited and be read inevidence in this passion. He, therefore, prays that the order needs to bequashed and set aside. 06.Learned Advocate for the petitioner relies on the judgment in ( 4 ) crwp830.25the case of IN RE: TO ISSUE CERTAIN GUIDELINES REGARDINGINADEQUACIES AND DEFICIENCIES IN CRIMINAL TRIALS VS. THESTATE OF ANDHRA PRADESH AND ORS., SUO MOTO WRIT(CRL)NO.(S) 1/2017. The Hon’ble Apex court in para 19 of the judgmentheld as under :-“19.The court is of the opinion that the Draft Rules of CriminalPractice, 2021, (which are annexed to the present order, and shallbe read as part of it) should be hereby finalized in terms of theabove discussion. The following directions are her11 pteby issued:(a) All High Courts shall take expeditious steps toincorporate the said Draft Rules, 2021 as part of the rulesgoverning criminal trials, and ensure that the existing rules,notifications, orders and practice directions are suitably modified,and promulgated (wherever necessary through the Official Gazette)within 6 months from today. If the state government’s co-operationis necessary in this regard, the approval of the concerneddepartment or departments, and the formal notification of the saidDraft Rules, shall be made within the said period of six months.(b) The state governments, as well as the Union of India (inrelation to investigating agencies in its control) shall carry outconsequential amendments to their police and other manuals,within six months from today. This direction applies, specifically inrespect of Draft Rules 1-3. The appropriate forms and guidelinesshall be brought into force, and all agencies instructed accordingly,within six months from today.”.Learned Advocate for the petitioner also relies on judgmentof this Court at Principal seat in the case of Purshottam Ishvar AminVs. Emperor reported in (1920) 10 BOM CK 0015. ( 5 ) crwp830.2507.The learned APP on the other hand vehemently argued thatthe statements under section 164 of the Cr.P.C. are recorded by followingprocedure before the Magistrate. The statements are on oath. As thestatements are recorded by the Magistrate, same can be directly used asevidence in the Trial. Proper reasons are given in the application whilepraying to exhibit the documents. She, thus, prays for dismissal of thepetition.08.This Court has heard the parties. The learned Sessions Judgein the impugned order has observed that in view of section 80 of theIndian Evidence Act, there is presumption of documents produced asrecord of evidence. That section provides that Court shall presumegenuineness of the document and truth of the statement. Thestatements were recorded as per section 80 of the Indian Evidence Actand thus they have presumptive value. He further observed that even ifwitness Supriya is not examined, still her statement can be accepted.09.This Court has seen Exhs. 80 and 81 of the Indian EvidenceAct and Section 164 of the Cr.P.C. Section 80 attaches presumption tothe document or statement recorded before any Judge or Magistrate. Insuch case, the Court shall presume genuineness of such document.
Decision
( 8 ) crwp830.2512.In the result, this Criminal Petition is allowed. The impugnedorder dated 03.04.2025 passed by the learned Additional Sessions Judge,Bhokar, Dist. Nanded below Exhs. 88 and 89 in Sessions Case No. 39 of2021 is quashed and set aside.[KISHORE C. SANT, J.] snk/2025/Sep25/crwp830.25