Heard Sri Ravindra Nath Rai, learned counsel for the revisionist and learned A.G.A.
The instant revision is preferred against the order dated 16.5.2011 passed by Additional Sessions Judge, Court No.1, Allahabad in Sessions Trial No.485 of 2005, State Vs. Saleem @ Karia under sections 363, 366, 376 IPC whereby Sri S.S. Upadhayay, the then A.C.J..M., Allahabad was summoned to give evidence to prove the statement of the victim Km. Shakuntala (since dead).
Though the impugned order is an interlocutory order and the revision against the same is not maintainable, but on the other hand, the Court finds that summoning of Judicial Officer in Court for the purposes of giving evidence to prove the statement recorded under section 164 Cr.P.C. is unwarranted.
In Nazir Ahmad Vs Emperor [AIR 1936 PC 253], it was held that:
"....it would be particularly unfortunate if Magistrates were asked at all generally to act rather as police officers than as judicial persons; to be by reason of their position freed from the disability that attaches to police officers under Section162 of the Code; and to be at the same time freed, notwithstanding their position as Magistrates, from any obligation to make records under Section164. In the result they would indeed be relegated to the position of ordinary citizens as witnesses and then would be required to depose to matters transacted by them in their official capacity unregulated by any statutory rules of procedure or conduct whatever."
The aforesaid view of the privy counsel was approved by the Apex Court in Dhananjaya Reddy Vs. State of Karnataka [2001 (42) ACC 829].
In State of Madras Vs. G. Krishnan AIR 1961 Madras 92 (V 48 C 28), a full Bench of the Madras High Court has held that the statements recorded under section 164 Cr.P.C. are public documents within section 74 of the Indian Evidence Act. I entirely agree with the decision of the Full Bench of the Madras High Court and I have no reason to take a contrary view.
The statement of Shakuntala recorded under section 164 Cr.P.C. is a public document. The statement was recorded by a Judicial Magistrate, a public servant, in due discharge of his official duties, and it does not require any formal proof by summoning the Magistrate to prove his handwriting or signatures.
It may also be noted that at present, the Courts are struggling with mounting arrears and the Magistrates are overburdened with judicial work. To expect from the Magistrate that he may leave his judicial work aside and appear in Court to give his evidence simply to prove a statement recorded by him in due discharge of his duties, is too much. Even if the trial court considers that the statement of Shakuntala recorded under section 164 Cr.P.C. requires any formal proof, the same may be done by production of any clerk or stenographer or other official of the Court, who may be familiar with the handwriting or signatures of the Magistrate. Summoning of the Magistrate for the aforesaid purpose cannot be appreciated.
In the instant case, though the revision may not be technically maintainable, even then the Court cannot ignore the fact that unnecessarily a Judicial Officer is being summoned to give evidence for a purpose, which can be solved even without summoning the Judicial Officer.
In these circumstances, the impugned order dated 16.5.2011 passed by Additional Sessions Judge summoning the Magistrate is quashed. Learned trial Judge, if required, may summon the officials of the Court familiar with the handwriting and signatures of the Magistrate to prove the said document.
With these observations, the revision is disposed of.
Order Date :- 22.7.2011 ss