Shabeena Koser vs Union Territory Of J&K
2021 Latest Caselaw 623 j&K

                                                                  Serial No.115
                                                                  Before Notice

          IN THE HIGH COURT OF JAMMU AND KASHMIR
                         AT JAMMU
                        (THROUGH VIRTUAL MODE)
                           CRM(M) No.331/2021
                            CrLM No.1045/2021
Shabeena Koser                                                  ...Petitioner(s)

      Through:      Ms. Zahida Parveen, Advocate.

             Vs.

Union Territory of J&K                                       ...Respondent(s)

       Through:      Mr. Adarsh Bhagat, GA.

CORAM:              Hon'ble Mr. Justice Sanjay Dhar, Judge
                                  (ORDER)
                                  21.06.2021
CrlM No.1045/2021

Instant application seeking extension of time for annexing/depositing the requisite court fee with the petition, in view of the grounds urged therein, is allowed. The petitioner shall deposit the requisite court fee with the Registry of this Court within a period of one week from the date Registry resumes normal functioning.

CM is disposed of.

CRM(M) No.331/2021

1. Through the medium of instant petition, the petitioner is seeking a direction to respondent No.1 to get her statement under Section 164 of the Code of Criminal Procedure re-recorded.

2. It is the case of the petitioner that an FIR bearing No.54/2021 for offences under Section 366, 376, 343 and 109 IPC stands registered against the respondent No.2 and his family members with Police Station, Surankote Poonch. It is submitted that the petitioner, who is a major person, has entered into a wedlock with respondent No.2 out of her own free will and volition. It is further averred that father of the petitioner, who was not happy with this marriage, started harassing the petitioner and respondent No.2 and he compelled the petitioner to lodge the aforesaid FIR

against the respondent No.2 and his family members. The petitioner has also averred that she had along with her husband, respondent No.2, approached this Court by way of a writ petition bearing WP(C) No.76/2021, seeking protection against the harassment meted out to them at the instance of her father. A copy of the order dated 22.01.2021 passed by this Court in the aforesaid writ petition has been placed on record. The petitioner has also placed on record copy of Nikah Nama and a copy of marriage agreement to substantiate the fact that she has entered into wedlock with respondent No.2.

3. It has been contended that during the investigation of aforesaid FIR, father of the petitioner coerced the petitioner to make a statement under Section 164 Cr. P. C before Judicial Magistrate 1st Class, Surankote, against the respondent No.2 and his family members on 16.04.2021. According to the petitioner, the aforesaid statement does not reflect the true facts and now she wants to make a fresh statement before the Magistrate so as to narrate the correct facts. In this backdrop, the petitioner has sought a direction upon respondent No.1 for getting her fresh statement recorded under Section 164 Cr. P. C.

4. The question whether statement of a witness under Section 164 Cr. P. C can be recorded more than once, has been dealt with by this Court in the case of Showkat Ali v. State and ors. (561-A No.259/2014 decided on 04.09.2014). Para 11 of the judgment is relevant to the context and the same is reproduced as under:

"11. The Code does not contemplate any bar against recording statement of a witness under Section 161 of the Code and correspondingly under section 164-A more than once. Such a bar as a matter of fact cannot be imposed because cases may not be rare where necessity of recording such statement more than once arises and even contradictory statements are made. However, if statement is recorded more than once, the I. O. will have to arrive at a conclusion having regard to other evidence and material collected by him."

5. From the afore-quoted enunciation of law on the subject, it is clear that there is no bar to recording statement of a witness under Section 164 Cr. P. C more than once.

6. In the instant case it has been narrated by the petitioner, who is a major person, that she has entered into wedlock with the respondent No.2 out of her own will and volition. Even an order of protection has been passed in her favour by this Court. She has further stated that the earlier statement which she has made before the learned Magistrate on 16.04.2021 was made by her under coercion and that the same is not voluntary in nature. In view of this, recording of her statement afresh appears to be desirable.

7. In the aforesaid backdrop of the facts and circumstances of the case, this petition is disposed of with a direction to the respondent No.1 to consider the desirability of re-recording of statement of the petitioner under Section 164 Cr. P. C and to take an informed decision in this regard at the earliest. The respondent No.1 shall ensure proper safety and security of the petitioner at the time when she is produced before the concerned Magistrate for recording of her statement.

(Sanjay Dhar) Judge Srinagar 21.06.2021 "Bhat Altaf, PS"

SHOWKAT HASSAN KHAN 2021.06.22 14:00 I attest to the accuracy and integrity of this document