The main legal point established is that witness statements recorded under Sec. 164 of the Cr PC will not form part of the police record and the trial can proceed without them.

Mridula Mishra, J.

1. All the aforesaid three applications arise out of the order passed in Silao (Rajgir) P.S. Case No. 316 of 1996.

2. Cr. Misc. No. 13771 of 2003 and Cr. Misc. No. 22245 of 2003 have been filed for quashing the order dated 16.4.2003, passed by the Judicial Magistrate, 1st Class, Biharsharif by which it has been directed that the statement of four witnesses recorded u/s. 164 of the Criminal Procedure Code (hereinafter referred to as the Cr PC) should be reconstructed on the basis of photostat copy of the statement recorded u/s. 164, Cr PC and produced by the informant. Cr. Misc. No. 21802 of 2003 has been preferred for quashing the order dated 3.6.2003, passed by the Judicial Magistrate, 1st Class, Biharsharif, whereby the case of the petitioner have been committed to the Court of Sessions Judge, Nalanda at Biharsharif without complying the mandatory provisions contained in sec. 207, Cr PC.

3. Petitioners are named accused in the FIR, for offences under Secs. 452, 323, 324, 307, 302 and 34 of the Indian Penal Code and 27 of the Arms Act. Cognizance has been taken under Secs. 302, 307, 324 and 34 of the Indian Penal Code and 27 of the Arms Act. Thereafter an order was passed on 15.12.1999 by which the case was committed to the Court of Sessions. This order was challenged by filing Cr. Misc. No. 2696 of 2000 on the ground that without complying the mandatory provisions in sec. 207, Cr PC and without supplying the police papers to the accused persons, the case has been committed to the Court of Sessions. The order dated 15.12.1999 was quashed and the case was remitted back with the direction to serve police papers to the petitioners as required u/s. 207, Cr PC and only thereafter the case be committed to the Court of Sessions.

4. Counsel for the petitioner submits that in compliance of the direction of this Court the Court made endeavor to supply necessary documents to the accused as required u/s. 207, Cr PC. The statement of four witnesses recorded under sec. 207, Cr PC. The statement of four witnesses recorded under Section 164, Cr PC were since not available on the record the Investigating Officer was asked to supply the same. The Investigating Officer also informed his inability to supply the statement of witnesses recorded u/s. 164, Cr PC as the statement of the witnesses u/s. 164, Cr PC was not recorded at the instance of the Investigating Officer, but it was recorded at the instance of the informant. The Judge Incharge, Administration, Civil Court, Nalanda directed the Judicial Magistrate to re-construct lost documents. The informant thereafter filed a petition annexing copies of the statement of four witnesses recorded under sec. 164, Cr PC for re-construction of the record. By order dated 16.4.2003 the Judicial Magistrate allowed the application of the informant. This order has been challenged by the petitioners on the ground that serious prejudice and in justice has been caused to the petitioners as the order has been passed without assigning/giving an opportunity to the petitioners. The photostat copy of the statement recorded u/s. 164 Cr. PC has been filed by the informant. This photostat of the statement recorded u/s. 164, Cr PC. Certified copy of the statement recorded u/s. 164 is not available with the informant.

5. From the petition is it evident that the photo copy is the photo copy of the statement recorded u/s. 164, Cr PC. The genuineness of such document is disputed by them even then the Court below has passed the order for reconstruction of the record on the basis of such suspicious document alleged to be the photo copy of the statement recorded u/s. 164, Cr PC.

6. Counsel appearing for opposite party has admitted that the photostat copy of which has been supplied by the informant is the photocopy of the photocopy of the statement recorded u/s. 164, Cr PC. Very fairly he has concerned that if the accused persons are going to be prejudiced by such reconstruction of the documents, in t