A statement recorded under Section 164 of the CrPC can be admitted into evidence and marked as an exhibit without the concerned Magistrate being examined during the trial.

1. THE present petitioner is facing his trial of an offence punishable under Section 376 of the Indian Peal Code before the Learned Additional District and Sessions Judge, Fast Track 2nd Court, Uluberia, Howrah. In course of such trial, the statement of the victim girl recorded under Section 164 of the Code of Criminal Procedure was tendered by the Investigating Officer of the case and was marked as Exhibit 9. However, defence raised an objection to that on the ground no statement under Section 164 of the Code can be marked exhibit and be admitted into evidence without the Learned Magistrate concerned who recorded such statement being examined in Court. THE Learned Trial Court rejected such objection. Hence, this Criminal Revision.

2. HEARD Mr. Rabindra Nath Pal, Learned Counsel appearing for the petitioner, Mr. Debabrata Roy, Learned Counsel appearing for the State as well as Mr. Manjit Singh, appearing as Amicus Curiae.

In this case, the short question that arises for decision, as to whether a statement recorded under Section 164 of the Code of Criminal Procedure can be admitted into evidence and be marked as exhibit, without the concerned Magistrate recorded such statement being examined during the trial.

3. ACCORDING to the Learned Advocate of the petitioner, although the Learned Magistrate was very much available but in spite of repeated summons were issued, he did not turn up. He further submitted that it transpired from the 164 statement of the victim that the Learned Magistrate has recorded something incriminating against the petitioner, which has not been stated by the victim girl in her evidence during the trial. Thus, he submitted if the Learned Magistrate is not examined, then in that case the accused shall lost the opportunity to take such contradiction with reference to the evidence of the victim girl. On the other had, Mr. Debabrata Roy, Learned Counsel appearing for the State, submitted before this Court that there is no bar to exhibit a statement recorded under Section 164 of the Code of Criminal Procedure without the examination of the concerned Magistrate recorded the same and such statement may be taken into consideration by the Trial Court.

4. WHEREAS, according to Mr. Manjit Singh, Advocate appearing as Amicus Curiae, there is no bar in exhibiting a statement recorded by a Learned Magistrate, be that be a confession of an accused or a statement of a witness without examining the Learned Magistrate during the course of trial. According to him, such statement can very well be tendered into evidence by the Investigating Officer of this case. In support of his submissions, Mr. Singh relied on a decision of the Honble Supreme Court in the case of Madi Ganga Vs. State of Orissa, reported in AIR 1981 SC 1165. In paragraph 5 of the said decision, the Honble Supreme Court held as follows;

5. The Learned Magistrate has put to the accused all the necessary questions to satisfy himself that the confession was voluntary. He has also appended the necessary certificate. We do not accept Shri Jains submission that the Learned Magistrate should have been examined as a witness. Section 80 of the Evidence Act makes the examination of the Magistrate unnecessary. It authorizes the Court to presume that the document is genuine, that any statements as to the circumstances under which it was taken are true and that such confession was truly take in accordance with law. Mr. Singh further relied on a decision in the case of Guruvindapalli Anna Rao and Ors. Vs. The State of A.P., reported in 2003 Cri. L.J. 3253, where the Honble Division Bench of the Andhra Pradesh High Court in paragraph 7 held as follows;

7. We could like to put one more discrepancy on record, viz., that while recording evidence, the learned II Additional Sessions Judge had summoned the I Additional Munsif Magistrate, Tenali (P.W. 10) to prove the statement of P.W. 1 recorded by him under Section 164, Cr.P.C. This Court has already ruled if any Magistrate