The CBI approached the Allahabad High Court at Lucknow seeking quashing of two orders of Special Judge CBI Lucknow, whereby application of CBI to issue summons to examine the then Judicial Magistrate, who recorded statements under section 164 of the Cr. P. C. of the witnesses and who subsequently turned hostile during trial, be examined as a witness to prove the voluntariness of statements, has been rejected.
As per the version of CBI, on 06.11.2008, the Respondent No2, erstwhile President of the Central Bar Association Lucknow along with other advocates called for a strike and reached the District Court campus. There he asked the Chaukidar and Lift Operator to hand over the keys of the multistory building and in their refusal they were beaten mercilessly.
An FIR was lodged against the Respondent No.2 and other Advocates under sections 322, 353, 504, 506, 307 of IPC, Section 7 of the C.L.A Act and Section 3 of Prevention of Damage to Public Property Act.
After investigation the police submitted a final report but the Allahabad High Court at Lucknow directed for CBI Investigation in the matter. During investigation the witness chaukidar gave a statement under Section 161 CrPC and specifically named the Respondent No.2.
A Statement under Section 164 CrPC was also recorded in which the witnesses supported the version of FIR. However during the Trial the witnesses turned hostile and stated that their statement was taken under pressure and this led to filing of an application before the Special Judge for issuing Summons to the Judicial Magistrate who recorded the statements.
The Question before the Allahabad High Court was
Can a Judicial Magistrate Who Recorded Statement Under 164 CrPC be Examined to Prove Voluntariness of Statement?
Hon’ble Justice Alok Mathur of Allahabad High Court at Lucknow after referring to the provisions of Section 161 and 164 CrPC and Judgments of Supreme Court in the case of Mohd. Jamiludin Nasir v. State of W.B., (2014) 7 SCC 443, held that there is no requirement for the Magistrate while recording a statement under Section 164 CrPC to record a declaration regarding voluntariness of the statement, therefore the application of the CBI is absolutely misconceived.
The Court further observed that the statement recorded under Section 164 CrPC is a public document as per Section 74 of Evidence Act and therefore does not require any formal proof by summoning the Magistrate to prove the same.
However this will not be applicable in case of confessional statement.
In view of the above the Allahabad High Court at Lucknow upheld the Order of Special Judicial Magistrate and set aside the Order of Special Judge Passed in Criminal Revision Petition.
Title: CBI vs State of U.P. and Another
Case No. U/S 482/378/407 No. – 770 of 2015
Date of Judgment: 14.01.2020
Coram: Hon’ble Justice Alok Mathur