LexAJAY KUMAR PARMAR versus STATE OF RAJASTHAN
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A B [20'12] 8 S.C.R. 970 AJAY KUMAR PARMAR v. STATE OF RAJASTHAN (Criminal Appeal No. 1496 of 2012) SEPTEMBER 27, 2012 [DR. 8.5. CHAUHAN AND FAKKIR MOHAMED IBRAHIM KALIFULLA, JJ.] Code of Criminal Procedure, 1973 - ss. 207 to 209 and C s. 164 - Power of Magistrate - FIR alleging commission of rape - Thereafter prosecutrix approaching the Chief Judicial Magistrate (CJM) on her own seeking to record her statement uls. 164 Cr.P.C - As per order of CJM, Judicial Magistrate recording her statement u/s. 164 - The prosecutrix in her D statement uls. 164 exonerating the accused of the allegations - Police filing charge-sheet - The Judicial Magistrate, in view of the statement of the prosecutrix uls. 164, discharging the accused - The order of Magistrate set aside by Revisional Court as well as High Court - On appeal, held: Order of E Magistrate rightly set aside - The statement u/s. 164 was not recorded correctly as th.e prosecutrix was not produced before the Magistrate by police and that her statement was recorded without identifying her - The order of discharge was a nullity without jurisdiction as the matter was cognizable by the F Sessions Court - Magistrate had no jurisdiction to probe into the matter - He was bound under law to commit the case to the Sessions Court - It was also not permissible to examine weight of the evidence at that stage - The signature of the prosecutrix on the papers before CJM and Judicial Magistrate G also did not tally with signatures on FIR and Medical Report which creates suspicion. Evidence Act, 1872 - s. 73 - Comparison of signature! writing by the court - Held: There is no legal bar to prevent the court from such comparison - But the court as a matter H 970 AJAY KUMAR PARMAR v. STATE OF RAJASTHAN 971 of prudence and caution should be slow to base its findings A solely upon the comparison made by it - The court can apply its observation on the expert opinion or that of any other witness. FIR was lodged against the appellant-accused alleging rape. Prosecutrix, thereafter appeared before 8 Chief Judicial Magistrate and lodged a complaint stating that the police was not investigating the case properly and filed an application that her statement be recorded uls. 164 Cr.P.C. The application was allowed. Consequently, the Judicial Magistrate recorded the C statement of the prosecutrix uls. 164 Cr.P.C. to the effect that the .FIR lodged by her was false; that her statement uls. 161 Cr.P.C. was also false and that no offence was ever committed by the appellant-accused. Af1er conclusion of the investigation, police filed charge-sheet against the appellant. The Judicial Magistrate, taking note of the statement uls. 164 Cr.P.C., passed an order of not taking cognizance of offences ul D ss. 376 and 342 IPC and discharged the appellant- E accused. State filed revision and the same was allowed by Sessions Court reversing the order of the Magistrate. The order of Sessions Court was affirmed by High Court. Hence the present appeal. F Dismissing the appeal, the Court HELD: 1.1. The revisional court as well as the High Court have rightly held that the statement under Section 164 Cr.P.C. had not been recorded correctly. The said G courts have rightly set aside the order of the Judicial Magistrate, not taking the cognizance of the offence. A statement u/s. 164(5) Cr.P.C. can be recorded, only and only when, the person making such statement is produced before the Magistrate by the police. In case H 972 SUPREME COURT REPORTS [2012] 8 S.C.R. A such a course of action, wherein such person is allowed to appear before the Magistrate of his own volition, is made permissible, and the doors of court are opened to them to come as they please, and if the Magistrate starts recording all their .statements, then too many persons B sponsored by culprits might throng before the portals of the Magistrate courts, for the purpose of creating record in advance to aid the said culprits. [Paras 5] [982-8-0] c Jogendra Nahak and Ors. v. State of Orissa and Ors. AIR 1999 SC2565: 1999 (1) Suppl. SCR 39 - relied on. 1.2. The Chief Judicial Magistrate, who entertained the application and further directed the Judicial Magistrate, to record the statement of the prosP~utrix, was not known to the prosecutrix in the case and the 0 latter also recorded her statement, without any attempt at identification, by any court officer/lawyer/police or
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