Madras High Court
Rajendran vs State Rep. By on 24 September, 2024
Crl.R.C. No. 1592 of 2024
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 24.09.2024
CORAM
THE HON'BLE MR. JUSTICE M. NIRMALKUMAR
Crl. R.C. No. 1592 of 2024
&
Crl.M.P. No. 13228 of 2024
Rajendran ..Petitioner
Vs.
State rep. by
Deputy Superintendent of Police,
CBCID, OCU,
Salem City,
Cr.No. 01/2015. ..Respondent
Prayer: Criminal Revision Petition under Section 437 r/w 442 of BNSS
Act to set aside the order dated 03.09.2024 passed in C.M.P. No. 195 of
2024 in S.C. No. 450/2016 by the II Additional District and Sessions Judge,
Salem.
For Petitioner :: Mr.G. Mohanakrishnan
For Respondent :: Mr.A. Damodaran,
Addl. Public Prosecutor
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Crl.R.C. No. 1592 of 2024
ORDER
The petitioner/Accused No.3 in S.C. No. 450 of 2016 on the file of II
Additional District and Sessions Court, Salem, filed C.M.P. No. 195 of 2024
seeking to eschew Ex.P8 and Exs.P47 to P53 from the records of the above
case.
2. The petitioner is charged and facing trial along with two others
for the offences under Sections 120(B), 364(A), 302, 302 r/w 120(B) and
201 r/w 34 IPC. According to the learned counsel for the petitioner, in this
case, the prosecution has so far examined 37 witnesses and marked 67
documents to prove the charges against the petitioner and others. During the
course of investigation, at the request of the Investigating Officer, statements
of P.W.2 Manikandan, P.W.5 Aravind, P.W.6 John Lawrence, P.W.7
Kirubakaran, P.W.8 Tamilanban, P.W.10 Subramaniam, P.W.11 Suresh,
P.W.12 Muthu @ Muthaiya were recorded under Section 164 Cr.P.C. P.W.s
5 to 8 and 10 to 12 did not support the case of the prosecution and they were
treated as hostile. P.W.5 admitted the contents of his statement under
Section 164 Cr.P.C. partially and not in entirety. But, the entire statement
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was marked as Ex.P3. Likewise, P.W.11 partially admitted certain facts but
his entire statement was marked as Ex.P8. Likewise, the statements of other
witnesses, who did not support the prosecution case had been marked
through P.W.35, Judicial Magistrate No.2, Salem as Exs.P47 to P53. The
petitioner, while marking the documents, had raised objection that through
the learned Magistrate, the entire statement of witnesses recorded under
Section 164 Cr.P.C. cannot be marked. Further, learned counsel for the
petitioner submitted that the reason given by the Trial Court that though
P.W.35, Judicial Magistrate No.2, Salem was examined as early as on
07.12.2023, the petitioner had filed the petition belatedly on 06.08.2024 and
therefore, the same cannot be entertained is no proper reason as the
petitioner had raised his objection even at the time of marking 164 Cr.P.C.
statements as exhibits. The learned counsel relied on the judgment of the
Hon'ble Apex Court in Criminal Trials Guidelines Regarding
Inadequacies and Deficiencies, In Re V. State of Andhra Pradesh and
Others reported in (2021) 10 SCC 598 wherein the Apex Court held that
'since the objections are decided then and there, it causes prolonged trial
and the Trial Court can decide these objections at the final stage'. Further,
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the learned counsel submitted that omnibus marking of the entire statement
under Section 164 Cr.P.C. is not permissible and referred to sub-rules (11),
(12) and (13) of Rule 42 of Criminal Rules of Practice, 2019, which was
amended on 12.08.2022 and the said provisions are extracted hereunder:
42. Deposition of a witness:
....
(11) The rule applicable to recording of the statements under
Section 161 of the Code shall also mutatis mutandis apply to
the statements recorded under Section 164 of the Code,
whenever such portions of prior statements of living persons
are used for contradiction or corroboration.
(12) Omnibus marking of the entire statement under Sections
161 and 164 of the Code shall not be done.
(13) The Presiding Officer shall ensure that only admissible
portion of Section 8 or Section 27 of the Indian Evidence Act,
1872 (Act 1 of 1872) is marked and such portion alone is
extracted on a separate sheet and marked and given an exhibit
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number'.
He further submitted that without adhering to the above Rules, the Trial
Court had marked Exs.P8 and Exs. P47 toP53, which causes prejudice to the
petitioner and hence to be eschewed.
3. Learned Additional Public Prosecutor, referring to Paragraph
No.9 of the impugned order, submitted that the Trial Court had recorded that
as per Rule 42(11) of aforesaid Rules, 164 Cr.P.C. statement can be used
either for contradiction or corroboraion of a witness. It was further noted
that the objections raised by the petitioner had been recorded at the time of
marking of documents and it had also been recorded. The petitioner did not
take up the issue further and was keeping quiet denoting acceptance. The
Trial Court further noted that the examination of prosecution witnesses was
over and the questioning of the petitioner under Section 313 Cr.P.C. was
also completed and when the matter was posted for arguments, the petitioner
had filed the petition belatedly just to protract the proceedings. The learned
Additional Public Prosecutor would add that the Trial Court was fully aware
of the settled legal position that statements recorded under Section 164
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Cr.P.C. cannot be taken as a whole and it can be used either to corroborate
or contradict the witnesses, who had given the statements. According to the
learned Additional Public Prosecutor, Exs.P8 and P47 to P53 are the
statements of witnesses recorded by P.W.35, Judicial Magistrate No.2,
Salem. The witnesses turned hostile. Hence, for the purpose of
contradiction, statements marked. The Trial Court considered the
petitioner's contention and observed that the objection can be decided at the
stage of final verdict of the case. In view of the same, the learned
Additional Public Prosecutor prayed for dismissal of the revision.
4. Heard both sides and perused the materials on record.
5. It is seen that the petitioner's only grievance is that Exs.P8 and
P47 to P53 have to be eschewed, which cannot be done. It is true that 164
Cr.P.C. statements of witnesses cannot be taken as a whole and it can be
used only for the purpose of corroboration or contradiction of witnesses.
The Trial Court is reminded of the same and accordingly shall deal with
them at the appropriate time .
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6. The criminal revision stands disposed of with the above
observation. Connected miscellaneous petition is closed.
24.09.2024
nv
To
1. The II Addl. District and Sessions Court,
Salem.
2. Deputy Superintendent of Police,
CBCID, OCU,
Salem City.
3. The Public Prosecutor,
High Court, Madras.
M. NIRMALKUMAR,J.
nv
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24.09.2024
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