N.ANAND VENKATESH, J.

1. This criminal original petition has been filed seeking to withdraw the case in Spl. CC No.25 of 2018 on the file of the Principal District and Sessions Court, Ramanathapuram and transfer the case to any other Court.

2. The petitioner is arrayed as A-4. It is seen from records that the respondent Police have registered an FIR against six accused persons in Crime No.06 of 2018 for the alleged offence under Section 366 of IPC and Section 5(g), 6, 16, 17 of the Protection of Children From Sexual Offence Act, 2012. The respondent Police after completion of the investigation, filed a final report before the Special Court and charges were framed against all the accused persons for the offence under Sections 366 and 366(A) of IPC and Section 5(g), 6, 16, and 17 of the POSCO Act. After framing of the charges, the case is at the stage of trial. At this point of time, the petitioner has filed this transfer application on the sole ground that the Special Judge, before whom the case is now pending for trial, had recorded 164 statement of the victim. The other ground that has been raised by the petitioner is that the Special Judge has also been shown as a witness in the list of witnesses filed along with the final report. Therefore, according to the petitioner, the Special Judge before whom the case is pending should not conduct the trial and the petitioner will not be able to get a fair justice before the learned Judge.

3. This Court had called for a report from the Principal District and Sessions Judge, Ramanathapuram, who is also a Special Judge, dealing with the offences under POCSO Act. The learned Judge, has submitted a report before this Court to the effect that the Special Judge is entitled to record the statement of the witness under Section 164 of Cr.P.C. in view of the judgment of this Court in Murugusamy Vs State, reported in, 2017 3 MWN(Cri) 77. The learned Judge has also stated in the report that this Court has already directed the Court below to complete the proceedings within a period of three months and the case is at the stage of trial?

4. The important question that has arisen for consideration before this Court is as to whether the jurisdictional Court, which conducts the trial in a case, can also be the same Court, which took statement/confession from any witness or accused and whether the Court becomes disentitled to try the case where the said Court had recorded statement under Section 164 of Cr.P.C.?

5. Before venturing into this question, this Court expresses its displeasure in the manner in which the Police have cited the Judge, who has recorded 164 statement, as a witnesses in the final report. This Court has time and again directed the Police not to include the Judge as a witness just because the Judge had recorded the statement under Section 164 of Cr.P.C.. Useful reliance can be placed by this Court on the judgment of a Division Bench of this Court in R. Murugesan Vs. State, reported in, (2014) 1 LW(Cri) 339. This Court has categorically held that the Magistrate recording the statement under Section 164 of Cr.P.C. need not be examined as a witness. The Division Bench also expressed its displeasure in the manner in which the Magistrates are added as witnesses in the final report and this Court reposed confidence that the situation would improve as time progresses. However, unfortunately, the same mistake continues to be perpetrated by the Police by showing the Judge/Magistrate who recorded the statement under Section 164 of Cr.P.C., as a witness in a case.

6. The Police is expected to comply with the judgment of the Hon'ble Division Bench referred to supra. The Police cannot repeat the same mistake again and again. At least while the final report is finally settled by the Public Prosecutor concerned, these mistakes can be easily avoided.

7. In this case, even though the learned Special Judge has been shown as LW.32 in the list of witnesses, the same has to be eschewed in view of the Div