IN THE HIGH COURT OF KERALA
Crl. M.C. No. 2627 of 2014
Decided On: 13.08.2014
State of Kerala
Hon’ble Judges/Coram:K. Ramakrishnan, J.
Citation;2014 CRLJ 4430 Kerala
1. This Criminal Miscellaneous Case is filed by the petitioner challenging the order passed by the Judicial First Class Magistrate Court-I, Kozhikode in P.C.A. No. 405/2104 in Crime No. 589/2012 of Chevayoor Police Station dismissing the application to issue certified copy Section 164 statement of the prosecutrix recorded by the Judicial First Class Magistrate Court-I, Kozhikode under Section 482 of the Code of Criminal Procedure (hereinafter referred to as ‘the Code’). It is alleged in the petition that petitioner was arrayed as the accused in Crime No. 589/2012 of Chevayoor Police Station. On 02/04/2014 he had applied for certified copy of the First Information Statement, First Information Report and statement of the prosecutrix recorded under Section 164 of the Code in Crime No. 589/2012 of Chevayoor Police Station and it was numbered as P.C.A. No. 405/2014 and after hearing the counsel for the petitioner and the Assistant Public Prosecutor of that Court, the learned Magistrate passed Annexure-B order and granted permission to issue certified copy of the First Information Statement and First Information Report alone, but rejected the prayer for issuing certified copy of Section 164 statement of the prosecutrix recorded by the Magistrate. That is being challenged by the petitioner before this Court.
2. Heard the counsel for the petitioner and the learned Public Prosecutor after admitting the same considering the question of law raised in the matter.
3. The counsel for the petitioner submitted that Section 164 statement is a public document and once it is a public document, he is entitled to get certified copy of that document and there is no necessity to keep that document away from public. Further in the First Information Statement, nothing was mentioned about the petitioner and he wanted to ascertain whether the prosecutrix had stated anything about him in the further statement given by her before the learned Magistrate while recording the statement under Section 164 of the Code and being an accused, he had entitled to get the same. He had relied on a decision of this Court reported in Unnikrishnan Nair v. State of Kerala MANU/KE/2390/2011 : 2014 KHC 2515 : 2014 (1) KLT 146 and also a decision of the Allahabad High Court reported in Raju Janaki Yadav v. State of U.P. MANU/UP/1407/2012 : 2013 KHC 2125 : 2013 Cri.L.J. 78 and Kunjumuhammed and Others v. State of Kerala MANU/KE/0635/2014 : 2014 KHC 3116: 2014 (2) KLJ 860 in support of his case.
4. The petition was opposed by the Public Prosecutor on the ground that it cannot be treated as a public document as such and further, during the course of investigation when a statement is recorded under Section 164, it will become part of the case diary file till the final report is filed and only if the prosecution wants to rely on those documents, then only that will become the right of the accused to get those documents, till then they are not entitled to get that document as of right.
5. It is an admitted fact that the petitioner was arrayed as the accused in Crime No. 589/2012 of Chevayoor Police Station. It is also an admitted fact that on the basis of the request made by the Investigating Officer, the statement of the prosecutrix was recorded by the learned Magistrate under Section 164 of the Code. It is also an admitted fact that the petitioner has filed a copy application for getting certified copy of the same along with other document and the learned Magistrate by the impugned order rejected the prayer to issue certified copy of the 164 statement of the prosecutrix and allowed the prayer for issuing certified copy of other documents. This is being challenged by the petitioner by filing this petition.
6. It is true that in the decision reported in Raju Janaki Yadav’s Case (cited supra), the Full Bench of the Allahabad High Court held that statement of the witnesses recorded under Section 164 of the Code indicates performance of official and judicial function by a Magistrate as an official and as such it is public document and the accused is entitled to get the certified copy of the same. But prior to this, the Full Bench of the Madras High Court in State of Madras v. G. Krishnan MANU/TN/0163/1961 : AIR 1961 Mad. 92 held that though the statement recorded under Section 164 of a witness is a public document, but since it is recorded during the part of the investigation, the accused is not entitled to get that document as of right as he is entitled to get documents which were produced by the Investigating Officer along with the final report under Section 173(2) of the Code. It has been observed as follows:
“(1) The statements recorded under Section 164, Cr.P.C., would be public documents falling under Section 74(1)(iii) of the Evidence Act and (2) the accused will be entitled to copies of the same as a person interested; (3) but his right to obtain such copies, before the filing of the charge-sheet has been taken away by implication by the provisions of Section 174(4) of the Criminal PC. And he will be entitled to the copies of the documents only in accordance therewith.”
7. Further the same view has been reiterated in the decision reported in Naresh Kumar Yadav v. Ravindra Kumar and Others MANU/SC/8067/2007 : 2007 KHC 4117 : JT 2007 (12) SC 171 : 2008 (1) SCC 632 : 2008 (1) KLT 839 : AIR 2008 SC 218 : 2008 (1) SCC (Cri.) 277 by the Supreme Court in which it has been mentioned that the papers which are to be supplied to the accused have been statutorily prescribed, an informant or the accused cannot have access to the case diary. Further in the decision reported in State of Karnataka by Nonavinakere Police v. Shivanna @ Tarkari Shivanna MANU/SC/0400/2014 : 2014 KHC 4321 : 2014 (2) KHC SN 47 : 2014 (6) SCALE 30 : 2014 (2) KLT 767, the Hon’ble Supreme Court has reiterated the procedure to be followed in the case of rape and recording the statement of the victim which reads as follows:
“On considering the same, we have accepted the suggestion offered by the learned counsel who appeared before us and hence exercising powers under Article 142 of the Constitution, we are pleased to issue interim directions in the form of mandamus to all the Police Station in charge in the entire country to follow the direction of this Court which are as follows: (i) Upon receipt of information relating to the commission of offence of rape, the Investigating Officer shall make immediate steps to take the victim to any Metropolitan/preferably Judicial Magistrate for the purpose of recording her statement under Section 164 Cr.P.C. A copy or the statement under Section 164 Cr.P.C. should be handed over to the Investigating Officer immediately with a specific direction that the contents of such statement under Section 164 Cr.P.C. should not be disclosed to any person till charge-sheet/report under Section 173 Cr.P.C. is filed. (ii) The Investigating Officer shall as far as possible take the victim to the nearest Lady Metropolitan/preferably Lady Judicial Magistrate. (iii) The Investigating Officer shall record specifically the date and the time at which he learnt about the commission of the offence of rape and the date and time at which he took the victim to the Metropolitan/preferably Lady Judicial Magistrate as aforesaid. (iv) If there is any delay exceeding 24 hours in taking the victim to the Magistrate, the Investigating Officer should record the reasons for the same in the case diary and hand over a copy of the same to the Magistrate. (v) Medical Examination of the victim: Section 164A Cr.P.C. inserted by Act 25 of 2005 in Cr.P.C. imposes an obligation on the part of Investigating Officer to get the victim of the rape immediately medically examined. A copy of the report of such medical examination should be immediately handed over to the Magistrate who records the statement of the victim under Section 164 Cr.P.C.”
8. In this decision, the Hon’ble Supreme Court has held that copy of the statement under Section 164 of the Code should be handed over to the Investigating Officer immediately with a specific direction that the contents of such statement under Section 164 of the Code should not be disclosed to any person till the charge-sheet/report under Section 173 of the Code is filed. So, it is clear from the dictum that, in the case of rape the statement recorded under Section 164 of the Code of a prosecutrix has to be kept in secret till the final report is filed. That was intended to protect the interest of the prosecutrix and also taking into account the possibility of threat to her life, if such statement has been disclosed to others at that stage. So under such circumstances and also in view of the direction given by the Supreme Court in this regard, the dictums laid down in the decisions reported in Raju Janaki Yadav’s Case (cited supra), and also Unnikrishnan Nair’s case (cited supra) on this point are no longer good law.
9. The dictum laid down in the decision reported in Kunjumuhammed’s case (cited supra) is not applicable to the facts of this case as the question arose in that case is if statement is recorded under Section 164 is produced in Court, then whether that can be relied on by the Court as a public document and what was observed in the decision is that it can be treated as a statement recorded in a judicial proceedings and this Court has observed that it will come under that category and only to that extent, the finding has been recorded. It has not considered the question as to whether the accused is entitled to get Section 164 statement of the victim recorded during the course of investigation as of right before the final report is filed. So that dictum is not applicable to this case. So in view of the observations made by the Hon’ble Supreme Court in the decision cited supra State of Karnataka by Nonavinakere Police v. Shivanna @ Tarkari Shivanna MANU/SC/0400/2014 : 2014 KHC 4321 : 2014 (2) KHC SN 47 : 2014 (6) SCALE 30 : 2014 (2) KLT 767, the learned Magistrate was perfectly justified in rejecting the prayer for issuing certified copy of Section 164 statement recorded by the Magistrate of the prosecutrix to the accused as he is not entitled for the same at this stage as of right and I do not find any reason to interfere with the same. So this petition is liable to be dismissed.
In the result this petition is dismissed.