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IN THE HIGH COURT OF JAMMU & KASHMIR AND LADAKH AT JAMMU
SINDHU SHARMA, J.
Shahnaz Kosar & Anr. - Petitioners
Versus
Union Territory of J&K & Ors. - Respondents
WP(C) No. 1146 of 2020
Decided On : 09-05-2022
Mandamus - Recording of Statement under Section 164-A of Cr.P.C. - Sections 452, 307, 109, 325, 323 of RPC - Section 161, 164-A of Cr.P.C.
Fact of the Case:
The petitioners seek a writ of mandamus to record their statements under Section 164-A of Cr.P.C. in an FIR involving various sections of RPC. They claim that their earlier statements were made under pressure and influence.
Finding of the Court:
The court found that the petitioners' claim of undue influence and pressure in recording their statements was not substantiated. It held that the earlier statement given by petitioner No. 1 may be false, and it would be for the trial court to consider her statement and conclude whether the offences have been committed or not.
Issues: The main issue was the validity of the petitioners' claim that their earlier statements were made under pressure and influence, and the request for re-recording their statements under Section 164-A of Cr.P.C.
Ratio Decidendi: The court held that the earlier statement given by petitioner No. 1 may be false, and it would be for the trial court to consider her statement and conclude whether the offences have been committed or not. It also cited the judgment in 'Showkat Ali vs. State of J&K and others' and 'Jogendra Nahak & Ors. vs. State of Orissa & Ors.' to support its decision.
Final Decision: The petition was dismissed as no good ground for issuing any direction was made out in view of the peculiar facts and circumstances of the case.
JUDGMENT :
1. The petitioner in the present petition seeks a writ in the nature of mandamus to record the further statement of petitioner No. 1 under Section 164-A of Code of Criminal Procedure (Cr.P.C.) in FIR No. 205 of 2018 dated 30.11.2018, registered in Police Station, Mendhar under Sections 452, 307, 109, 325, 323 of RPC. A further direction is also sought to record the statement of petitioner No. 2 by respondent No. 3 or in the Court of Law.
2. Briefly stated the facts as narrated in this petition are that; on 29.11.2019, when the petitioner No. 2 was on Election Duty in Nowshera, the lock of his house was broken in his native Village Salwah, Tehsil Mendhar, District Poonch. Both the petitioners immediately went to Salwah and found that lock of their house was broken and goods were scattered all over.
3. A complaint was made by petitioner No. 2 on 30.11.2018 at Police Station, Mendhar stating that on 30.11.2018, when he was not present at home, the accused who are their neighbours having old enmity with them over a piece of land, attacked his wife Shahnaz Kossar with an intention to kill her. They attacked his wife with knife on nose and leg and also thrashed her with a hand pump, on hearing her cry for help, some persons rushed to the spot and saved his wife and children from clutches of the accused. Thereafter, an FIR was registered and the statement of petitioner No. 1 was recorded by the police.
4. It is stated that the statement of the petitioner which was recorded before the Judicial Magistrate 1st Class, Mendhar under Section 164-A of Cr.P.C. was under the pressure and undue influence of the police authorities.
5. The petitioners now submit that the story as stated in the FIR as well as the statement recorded has been at the insistence of police authorities. The petitioner No. 1 was harassed under the undue influence of the police, some political persons, who out of vengeance and personal enmity, had used her as a medium to implicate innocent persons in this FIR.
6. The petitioner No. 1 further submits that as soon as she was out of undue influence of the police, she decided to reveal the truth and approached the S.S.P., Poonch to apprise him of the truth, who however, directed the S.H.O., Police Station Mendhar for action under rules but the S.H.O. did not agree to the plea of the petitioner. The petitioners thereafter approached the Court of learned Munsiff, Mendhar through their counsel for recording of the statement but the same was also not accepted.
7. The petitioners have placed reliance on the judgment of this Court in "Showkat Ali vs. State of J&K and Ors. (561-A No. 259/2014)" decided on 04.09.2014, wherein it has been held that there is no bar against recording statement of witness more than once provided the investigating officer (I.O) after considering the evidence arrives at this conclusion. It is not the case of the petitioner that the investigating officer has to come to this conclusion.
8. The respondents in their objections have submitted that, the complainant/ petitioner No. 2-Iftikhar Ali S/o Faqar Din filed an application at Police Station, Mendhar against Raza Ahmed S/o Mohd. Rafiq, R/o Salwah and four others regarding those who had trespassed into his house and attacked his wife and children with knife and other deadly weapons and also beaten his wife with kicks and blows due to which his wife got seriously injured on 30.11.2018.
9. It is further submitted that during the course of investigation, the Investigating Officer visited on spot, prepared site plan and seized the Iron rod, blood soaked clothes and also recorded the statement of eye witnesses under Section 161 of Cr.P.C. The Investigating Officer also recorded the statement of victim i.e. petitioner No. 1-Shahnaz Kosar before the Court of learned Judicial Magistrate 1st Class, Mendhar under Section 161-A.
10. In view of the statement of eye witnesses and medical report, it was transpired that the complainant and accused were close relatives a
The court emphasized that the trial court should consider the statement of the petitioner No. 1 and conclude whether the offences have been committed or not.
A Magistrate has no obligation to record a witness’s statement under S.164 CrPC unless prompted by the investigating officer.
A victim's statement under Section 164 of the CrPC cannot be recorded without the investigating agency's sponsorship to maintain the integrity of the judicial process.
A request to re-record a statement under Section 164 CrPC must be substantiated by clear evidence of coercion or duress, which was not established in this case.
The court declined to direct the re-recording of the petitioner's statement under Section 164 CrPC, holding that such a direction would interfere with the due process of law and that the petitioner w....
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