JUDGMENT - CHITRE J.G., J.:---This petition pertains to year 1998, therefore, in the absence of petitioner the petition is being decided on merit in the interest of justice.

2.Shri Gadkari has been heard on the points involved.

3.The chapter proceeding pertains to year 1998, because it bears Chapter Case No. 11 of 1998. The said notice is dated 18-12-1998. The notice shows that the learned Magistrate has used, already typed sheet for the purpose of utilising it as a notice, in view of provisions of section 111 of Code of Criminal Procedure, 1973 (hereinafter referred to as Code for convenience). The hand written matter has not been initialled. The way in which the said printed sheet is exhibitory itself, it does not satisfy this Court, that the learned Magistrate has applied his judicial mind to the information embodied in the said printed sheet of the paper. That is a grave error of facts and law.

4.Besides that the said sheet of paper does not give the details of the material which has been utilised by the learned Magistrate for issuing the said notice. The sentences used in the said printed sheet of paper are vague and ambiguous. They are indicating general allegations. There is no specific allegation made against the present petitioner.

5.The incident relates to year 1997, much time has lapsed in between. Therefore, this Court does not find any propriety of keeping the said chapter case survived. Thus, the said Chapter case stands quashed by allowing this writ petition.

The parties are directed to act upon the copy of this order duly authenticated by the Sheristedar/Court Stenographer of this Court.

Writ petition allowed.

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2003(Supp.) Bom.C.R. 880

(NAGPUR BENCH)

Before :

Sinha D.D. Kharche S.T., JJ.

Patiram Sadhu Sakharwade .... Appellant.

Versus

State of Maharashtra.... Respondent.

Criminal Appeal No. 298 of 1998, decided on 25/28-10-2002.

(A)Code of Criminal Procedure, 1973, Sec. 164—Statement of witness —Recorded by Magistrate—Not accompanied by Investigating Officer—Whether inadmissible in light of Supreme Court decision in 1999(4) Bom.C.R. (S.C.)872 holding section 164 does not empower Magistrate to record statement of witness without Investigating Officer moving for it—Held, observation of Supreme Court does not indicate that such statement if recorded is either inadmissible in law or cannot be admitted in evidence. Supreme Court was more concerned about ensuring consequences if such practice is adopted by Magistrate which, in a given case may help culprit to shield his crime. 1999(4) Bom.C.R. (S.C.)872 discussed. (Para 14)

(B)Code of Criminal Procedure, 1973, Sec. 164—Statement of witness—Recorded under section 164—Contention of accused that copies of 164 statements not made available—Held, it is not possible to hold that accused was deprived of copies of 164 statements, when accused has not made any grievance at appropriate stage before Court below. Similarly it is part and parcel of case diary as well as mentioned in the charge-sheet. (Para 16)

(C)Evidence Act, 1872, Sec. 3—Code of Criminal Procedure, 1973, Secs. 161 164—Child witness—Delay in recording statement under section 161 of Cri.P.C.—Statement recorded for first time after 15 days before Magistrate—Cross-examination revealing child told by father to state accused assaulted deceased—Effect on reliability—Held, a considerable delay is caused in recording statement of child under section 164 of Cri.P.C. therefore, possibility of tutoring this witness cannot be ruled out. Evidence of Investigating Officer is silent on failure to record statement under section 161 and delay in sending witness to Magistrate under section 164. Totality of evidence of child cannot be said to be free from tutoring and it is unsafe to rely on testimony of such child witness. (Para 21)

(D)Code of Criminal Procedure, 1973, Sec. 154—F.I.R.—Based on information of child witness—Evidence of child witness found unsafe to rely on—Reliability of F.I.R.—Held, F.I.R. lodged on basis of information

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