The admissibility of statements recorded under Section 164 of the Cr.P.C. as evidence and the conduct of the petitioner's counsel were central legal points established in the judgment.

JUDGMENT :

Rule. Rule made returnable forthwith. By consent of learned counsel for both the parties, heard finally at the admission stage.

2. The petitioner is seeking reliefs as under :—

B) The unilateral decision of the learned trial Court to Exhibit the statements of the witnesses recorded under Section 164 of the Criminal Procedure Code, 1973 without they being spoken about in the testification by the witnesses before the Court while recording their evidence, may kindly be faulted and that the exhibition done by the learned trial Court from Exh. 116 to 122 of the trial Court record, i.e. in Special Case (child) No. 10 of 2018 may kindly be ordered to be upset and these statements de-exhibited;

C. In the alternative, the defence be permitted to cross-examine the relevant witnesses on their respective statements recorded under Section 164 Cr.P.C. by allowing the application of the Petitioner recorded at Exh. 135 of the lower Court proceeding, being Special Case (child) No. 10 of 2018, and consequently, upsetting of the impugned order of the learned trial Court passed below Exh. 135 decided on 25-2-2021.

3. It is contended that the petitioner is facing trial for the offences punishable under Sections 376 (2) (i), 323 read with Section 34 of the Indian Penal Code (for short ‘IPC’) read with Sections 4, 5(m), 6 and 8 of the Protection of Children from Sexual Offences (POCSO) Act, 2012.

4. The charge came to be framed against the petitioner on 12-3-2018. Thereafter, the charge was altered on 12-2-2020. The prosecution led the evidence of the victim and others. The prosecution has closed the evidence and the matter was listed for hearing on 17-2-2021. During the arguments of the Public Prosecutor, the petitioner came to know that the trial Court has exhibited the statements of witnesses recorded under 164 of the Code of Criminal Procedure (for short “Cr.P.C.”) without giving notice to the petitioner. The petitioner had submitted an application (Exh. 135) for recalling of witnesses for cross-examination in the light of their statements recorded under Section 164 of the Cr.P.C. The said application came to be rejected. While rejecting the application, the trial Court has passed remarks against the Advocate of the petitioner. The said remarks are un-warranted hence, are required to be set aside. It is also prayed that the statements of witnesses recorded under Section 164 of the Cr.P.C. be de-exhibiated and in the alternative the petitioner be allowed to cross examine the witnesses.

5. Heard Mr. Hemant Surve, the learned counsel on behalf of the petitioner and Mrs. Geeta L. Deshpande, the learned APP on behalf of the Respondent-State.

6. Learned counsel for the petitioner has raised following questions which are as under :—

“a. Whether, the statements recorded under Section 164 of the Code of Criminal Procedure, 1973 before the learned Magisterial Court, could be exhibited under Section 80 of the Evidence Act, 1872 whereby the right of the accused to question the prosecution witnesses on these statements could be snatched away ?

b. Whether, the statements under Section 164 of the Code of Criminal Procedure, 1973 could be exhibited unilaterally without even affording of the copies of these statements to the accused ?

c. Whether, the observations of the learned Judge, while adjudicating the application under scrutiny by this Honourable Court, were at all warranted ? and

d. Whether, such observations correspond to the factuality ?

7. Learned counsel for the petitioner submitted that the trial Court is likely to read the statement of witnesses recorded under Section 164 of the Cr.P.C. as an evidence against the petitioner, which is not permissible. To substantiate his case he relied on the ratio laid down in the case of Hanumantha Mogaveera vs. State of Karnataka in the case of Criminal Petition No. 2951 of 2020.

In the case cited supra the Hon’ble Chief Justice of the Karnataka High Court by order dated 12-1-2021 constituted a Bench to consider th