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MADRAS HIGH COURT
Indira Banerjee, C.J. and P.N. Prakash, J.
Murugasamy —Petitioner
versus
State rep by Inspector of Police, Karumathampatty Police Station
Coimbatore District and Anr. —Respondents
Crl.O.P.No.12148 of 2017
Decided on 15.9.2017
Counsel for the Parties:
For the Petitioner:Mr. N. Ramesh for Mr. J. Franklin, Advocate
For the Respondents: Mr. R. Rajarathinam, Public Prosecutor Assisted by Mr. C. Emalias, Additional Public Prosecutor
For the CBI: Mr. B. Mohan and Mr. K. Srinivasan, Special Public Prosecutor
For the NIA: Mr. R. Karthikeyan, Special Public Prosecutor for
For the Intervener:Mr. J. Saravanavel, Advocate
IMPORTANT POINTS
1. After recording the statement of a witness/victim under section 164 Cr.P.C., 1973, the Judge/Magistrate shall arrange to take two photocopies of such statement and he shall furnish one such certified copy of the statement to the Investigating Officer immediately with a specific direction to the latter to use it only for the purpose of investigation and not to make its contents public, until the investigation is completed and final report filed.
2. The Government of Tamil Nadu is directed to construct special rooms for conduct of Test Identification Parade in all the prisons in the State.
Headnote:(i) Criminal Procedure Code, 1973—Section 164, 164-5A—Protection of Children from Sexual Offences Act, 2012—Sections 25 and 33—Recording of statement u/s 164 Cr.P.C.—It is part of the investigation process—A Magistrate who has jurisdiction to try the offence can also record the statement of a witness u/s 164 Cr.P.C.—When the victims are deaf and dumb children whose statements were recorded by the Magistrate u/s 164 Cr.P.C. with the help of an interpreter—It is open to the trial court to treat those statements as their examination-in-chief—Accused ‘X’, who was deaf and dumb, was the Correspondent-cum-Secretary of a school for the deaf and dumb, where, four girl children who were also deaf and dumb, were resident students—Prosecution case that the accused ‘X’ sexually abused victim girl ‘A’ over a period of time and started blackmailing her for his carnal pleasure—She also conceived through ‘X’ and was subjected to undergo abortion at his instance—When ‘X’ allegedly started sexually abusing other girl students, victim girl ‘A’ lodged police report—Police, in course of investigation, recorded statements of victims u/s 161(3 Cr.P.C. and the Judicial Magistrate requisitioned services of an interpreter and their statements u/s 164 Cr.P.C. were recorded—When the bail application filed by accused ‘X’ came up for hearing, the Deputy Superintendents of Police was called upon to submit the case diary for the purpose of persuing the Section 164 Cr.P.C. statements of the victims—Court was informed that the police had not been furnished with copies of those statements and that the police would have to make a copy application for getting the same from the jurisdictional Magistrate—Whether the police is entitled to be furnished with copies of such statements immediately—Held, Yes. (Para 51)
(ii) Criminal Procedure Code, 1973—Sections 164 and 463—Evidence Act, 1872—Section 80—Confessional statement of the accused recording of confession by a Magistrate under section 164 Cr.P.C.—Confession of an accused cannot be treated on par with the statement of a witness under section 164 Cr.P.C.—Possibility of a Magistrate recording confession of an accused being examined as a witness—Investigating Officer should file an application before the CMM/CJM for nominating a Magistrate, other than the jurisdictional Magistrate, to record the confessional statement of an accused. (Paras 55 and 56)
(iii) Evidence Act, 1872—Section 32—Criminal Procedure Code, 1973—Section 164—Dying declaration—Recording the dying declaration by a Magistrate—Procedure of nominating a Magistrate on a case to case basis for recording 164 Cr.P.C. statement may not be viable for recording dying declarations. (Para 58)
(iv) Evidence Act, 1872—Section 9—Test Identification Parade—Procedure for conducting—Court shall make a request to the CMM/CJM of the District to nominate a Magistrate, other than the Magistrate who has jurisdiction of the case, to conduct the Test Identification Parade. (Paras 79, 82 and 83)
Result: Reference Answered Accordingly.
ORDER
Indira Banerjee, C.J. and P.N. Prakash, J.—This specially constituted Division Bench is required to decide the following issue:
“Are the police entitled to be furnished with copies of the following documents immediately?
i. statement of witness recorded under Section 164 Cr.P.C.;
ii. Confession statement of the accused recorded under Section 164 Cr.P.C.;
iii. Dying declaration recorded by the Magistrate; and
iv. Test Identification Parade report of the Magistrate.
2. Before venturing to answer the aforesaid issue, it may be apposite to briefly recount the circumstances which led to the constitution of this Bench, for which, it may be necessary to succinctly state the facts obtaining in the case at hand.
2.1 Accused “X”, who is deaf and dumb, is the Correspondent-cum-Secretary of a school for the deaf and dumb, where, four girl children, viz., “A”, “B”, “C” and “D”, who are also deaf and dumb, were resident-students. It was alleged by “A” that the accused “X” sexually abused her over a period of time and started blackmailing her for his carnal pleasure. She also conceived through “X” and was subjected to undergo abortion in a hospital at his instance. When “X” started sexually abusing other girl students as well, “A” decided to spill the beans, resulting in the police registering a case in Cr.No.207 of 2017 for the offences under Sections 376(2), 376(2)(d), 376(2)(n), 376(2)(i), 376-C, 313, 109 and 506(i) IPC and the said case is now under investigation by the Deputy Superintendent of Police, P.E.W., Coimbatore District. While so, “X” was arrested on 09.05.2017 and was under judicial custody.
2.2 The police, in the course of investigation, recorded the statements of the victims of “X”, viz., “A”, “B”, “C” and “D” under Section 161(3), Cr.P.C. and gave a requisition to the Chief Judicial Magistrate, Coimbatore, for nominating a Judicial Magistrate to record the statements of the victims under Section 164 Cr.P.C. The Chief Judicial Magistrate, Coimbatore, by order dated 11.05.2017, directed the Judicial Magistrate, Special Court for Land Grabbing Cases, Coimbatore, to record the statements of the four victims under Section 164 Cr.P.C. Accordingly, the Judicial Magistrate for Land Grabbing Cases, Coimbatore, recorded the 164 Cr.P.C. statements of “A” and “B” on 29.06.2017 and such statements of “C” and “D” on 30.06.2017. Since all the four victims were deaf and dumb, the Magistrate requisitioned the services of an Interpreter and had their 164 Cr.P.C. statements recorded.
2.3 When the bail application preferred by “X” came up for hearing before one of us (P.N. Prakash, J.) on 03.07.2017, the Deputy Superintendent of Police, who was present in the Court, was called upon to submit the case diary for the purpose of perusing the 164 Cr.P.C. statements of the victims. The Deputy Superintendent of Police informed the Court that, albeit the statements were recorded by the Magistrate as early as 29.06.2017 and 30.06.2017, the police have not been furnished with copies of the same and that the police would have to make a copy application for getting the same from the jurisdictional Magistrate and only thereafter, the same would be furnished to them.
2.4 The learned Additional Public Prosecutor submitted that in the State of Tamil Nadu, if the Investigating Officer wants to have the 164 Cr.P.C. statement of a victim or witness recorded, he has to undertake the following steps:
1. Make an application before the Chief Metropolitan Magistrate / Chief Judicial Magistrate, as the case may be, for nominating a Magistrate for recording the 164 Cr.P.C. statement.
2. The CMM/CJM will then nominate a Magistrate.
3. Pursuant thereto, after ascertaining the convenience of the said Magistrate, the victim/witness should be produced before the Magistrate, who records the 164 Cr.P.C. statement of the victim/witness.
4. After recording the statement, the Magistrate sends the same in a sealed cover to the jurisdictional Court.
5. The Investiga
