Statements recorded under S. 164, Cr. P. C. are not inherently unreliable and can be used for contradiction or corroboration of witnesses who made them, but not as substantive evidence of the particulars of the fact.

( 1 ) THIS is the third bail application in Crime No. 97 under S. 302, I. P. C. , P. S. Naugawan Sadat, District Moradabad.

( 2 ) THE prosecution story as unfolded in the F. I. R. lodged on 29-5-85 at 11. 45 A. M. , is that the informant Yasins son Babu, and Iqbal, son of Sardar had gone to take ice in the morning. At about 9 A. M. when they were coming to the village Alampur Kech, Babu was surrounded by Gama and Khacheru, the applicants, Ejaz Haider and Amir Husain. Amir Husain intercepted Babu, the deceased by giving him a lathi blow at his cycle and told him that he would give him a lesson. Amir Husain exhorted Khacheru and the latter fired from his gun in the chest of Babu, who ran to the village. Thereupon Gama fired at Babu from a country made pistol. Babu fell on the ground. Thereupon Ejaz Haider gave a blow to the deceased. This occurrence was witnessed by Iqbal, who was accompanying the deceased and one Ramzani and Ismail. The police station was at a distance of 4 Km. from the place of occurrence. The post-mortem report has been filed. The deceased received injuries from the gun and country made pistol. When the charge sheet was submitted the name of Ejaz Haider was not there. It appears that during investigation the police did not find evidence against Ejaz Haider.

( 3 ) HEARD the learned counsel for the applicants as also the learned State Counsel. For the applicants it was urged that the name of Ejaz Haider was mentioned in the F. I. R. and it appears that the police in collusion with the accused Ejaz Haider, did not submit charge-sheet against him. The case of the applicant was similar to that of Ejaz Haider, against whom no charge-sheet was submitted, hence it was urged that the case against the applicant also becomes doubtful. The statements of most of the witnesses were recorded by the Magistrate under S. 164, Cr. P. C. , 1973, as the local police was apprehending that the prosecution witnesses might change their statements subsequently. It is on account of this suspicion that the statement had been recorded under S. 164 of the Code. Under these circumstances the veracity of the prosecution version becomes doubtful and there was no possibility of conviction. The applicants were accordingly entitled to bail.

( 4 ) ON behalf of State it was urged that the case of applicants was distinguishable from the case of Ejaz Haider. In the F. I. R. also separate role has been assigned to the accused. Simply because the police did not submit charge sheet against Ejaz Haider, it cannot be inferred that the case of the applicants was also doubtful. As there remains constant pressure from accused on prosecution witnesses S. 164 of the Code was enacted with a view that in case there was some suspicion that the prosecution witnesses may change their version under the pressure of the accused, the statement of such witnesses can be recorded by a Magistrate. On that account the statement of prosecution witnesses would not become doubtful. Further this point appears to be covered by the discussion of facts and the points decided in the earlier order disposing of the first bail application. The same point cannot be urged in second or third bail application.

( 5 ) I am conscious that order on a bail application need not be detailed one but as the legal points were argued from both sides which require a bit detailed discussion. After hearing the counsel for the parties at considerable length, the first point for determination is as to whether the arguments advanced by the learned counsel for the applicants about the statements of most of the prosecution witnesses being recorded under S. 164 of the Code was considered in the first order disposing of the bail application or not. Suffice it to say that the right of bail is statutory right, rather it is a constitutional right. Even though it may be second or third bail application, but unless it is apparent from a reading of the first bail order that the point urged in the s