A Judicial Magistrate who recorded a statement under Section 164 Cr.P.C. need not be called as a witness if said statement is already admitted in evidence and the witness has been cross-examined on it.

J U D G M E N T

1. Leave granted.

2. The appeal is arising out of the impugned judgment and order dated 03.11.2023 passed by the High Court of Chhattisgarh at Bilaspur in CRR No.996 of 2023, whereby the High Court has allowed the said revision application filed by the respondent – accused and set aside the order dated 01.08.2023 passed by the First Additional Sessions Judge (POCSO), District Janjgir Champa, Chhattisgarh in Special Sessions Trial No.36 of 2022 (“Trial Court”).

3. The Trial Court had rejected the application of the respondent seeking direction to call the Judicial Magistrate, Pamgarh, as a defence witness, for evidence, who had recorded the statement of the prosecutrix under Section 164 of the Code of Criminal Procedure.

4. Heard the learned counsel appearing for the appellant – State of Chhattisgarh. None is present for the respondent when the matter is called out. On the earlier occasions also, none had remained present for the respondent. Hence, it appears that the respondent is not interested in contesting the present appeal.

5. Learned counsel for the appellant State has relied upon the decision of this Court in the case of “ Dhanabal and Anr. Vs. State of Tamil Nadu , (1980) 2 SCC 84” and submitted that the statement of the prosecutrix under Section 164 of Cr.P.C. has already been admitted in evidence, and hence impugned Order be set aside.

6. Having regard to the submissions made by the learned counsel for the appellant - State and the documents on record, it appears that the respondent – accused had submitted an application to the Trial Court seeking direction to call the concerned Magistrate, who had recorded the statement of the prosecutrix under Section 164 of Cr.P.C. The said application was rejected by the Trial Court, however has been allowed by the High Court vide the impugned Order.

7. It appears that the statement of the prosecutrix recorded under Section 164 of Cr.P.C. has already been admitted in evidence during the deposition of the prosecutrix, as Exhibit P-8, and the prosecutrix was also cross-examined on the same at length. The prosecutrix in her that deposition has categorically confirmed about the recording of the said statement by the concerned Magistrate. The said statement being admissible in evidence, the Trial Court had rightly rejected the application of the respondent. In our opinion, the High Court, in exercise of its limited revisional jurisdiction, should not have interfered with the said order passed by the Trial Court, which was just and proper. It goes without saying that the said statement recorded by the concerned Magistrate under Section 164 Cr.P.C. shall be appreciated by the Trial Court alongwith other evidence on record, in accordance with law.

8. The impugned order passed by the High Court is set aside and the order passed by the Trial Court is restored.

9. The appeal stands allowed accordingly.

10. Pending application(s), if any, shall stand disposed of.