# C.B.I., New Delhi v. State of U.P. & Anr. Opp. Parties

- **Citation:** (2020) 12 ILRA 150
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2020-12-14
- **Case number:** Application U/S 482/378/407 No. 770 of 2015
- **Bench:** Alok Mathur
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/c-b-i-new-delhi-v-state-of-u-p-anr-opp-parties-45449
- **Pages:** 9

## Headnote

Criminal Law - Code of Criminal Procedure,
1973-
Section
397(2)-
Section
311-
Maintanability-Rejection of an application
under section 311 of the Cr. P. C. would
amount to an interlocutory order against
which a revision is not maintainable as per
section 397(2) of the Cr. P. C. and the
judgment would be no-est and of no
consequence. Further, even the Additional
District and Sessions Judge ruled against
the petitioner and therefore no interference
is required in the present petition with the
order of trial court.

An order passed u/s 311 Cr.Pc, being an
interlocutory order, no criminal revision is
maintainable against it.

Criminal
Law
-
Code
of
Criminal
Procedure, 1973- Section 164- Section
281- Indian Evidence Act, 1872- Section
74- The petitioner is requiring summoning
of the Judicial Officer only with regard to
giving evidence to the fact that the
statement was made voluntarily and was
not taken under pressure as deposed by
the witnesses during trial. In light of the
provisions of section 164 read with
section 281 of the Cr. P. C. the statement
of the complainant as well as the other
witnesses of the prosecution were to be
recorded in the manner provided in the
said sections and further no declaration
was required by the Magistrate with
regard
to
the
voluntariness
of
the
statement as it was only a statement of
the complainant. The application of the
petitioner
requiring
summoning
of
a
judicial officer to prove the voluntariness
of
the
statement
was
clearly
misconceived. The statement recorded
under section 164 of the Cr. P. C. would be
a public document as per Section 74 of the
Evidence Act and, therefore, does not
require any formal proof by summoning
the Magistrate to prove the same.

The statement made u/s 164 of the Cr.Pc is a
public document and does not require any
declaration from the judicial officer as to the
voluntariness of the said statement.

Revision partly allowed. (Para 17, 25, 26)
(E-10)

Judgements/ Case law relied upon:-

## Text

150 INDIAN LAW REPORTS ALLAHABAD SERIES
right to prefer an appeal before the
Prescribed Authority under sub-section (1)
of Section 23 of the Act. If the petitioners
are dissatisfied with the decision in the
appeal, they can prefer a further appeal to
the Tribunal under sub-section (3) of
Section 23 of the Act, and then ask for a
case to be stated upon a question of law for
the opinion of the High Court under
Section 24 of the Act. The Act provides for
a complete machinery to challenge an order
of assessment, and the impugned orders of
assessment can only be challenged by the
mode prescribed by the Act and not by a
petition
under
Article
226
of
the
Constitution. It is now well recognised that
where a right or liability is created by a
statute which gives a special remedy for
enforcing it, the remedy provided by that
statute only must be availed of. This rule
was stated with great clarity by Willes, J. in
Wolverhampton6 in the following passage:

"There are three classes of cases
in which a liability may be established
founded upon statute. . . . But there is a
third class, viz. where a liability not
existing at common law is created by a
statute which at the same time gives a
special and particular remedy for enforcing
it.... The remedy provided by the statute
must be followed, and it is not competent to
the party to pursue the course applicable to
cases of the second class. The form given
by the statute must be adopted and adhered
to."

The rule laid down in this
passage was approved by the House of
Lords in Neville v. London Express
Newspapers Ltd. (1919 AC 368) and has
been reaffirmed by the Privy Council in
Attorney-General of Trinidad and Tobago
v. Gordon Grant & Co. Ltd. (1935 AC 532)
and Secretary of State v. Mask & Co. (AIR
1940 PC 105). It has also been held to be
equally applicable to enforcement of rights,
and has been followed by this Court
throughout. The High Court was therefore
justified in dismissing the writ petitions in
limine."
 (emphasis supplied)"

30. In the subsequent decision in
Mafatlal7, the Apex Court went on to
observe that an Act cannot bar and curtail
remedy under Article 226 or 32 of the
Constitution. The Court, however, added a
word of caution and expounded that the
constitutional Court would certainly take
note of the legislative intent manifested in
the provisions of the Act and would
exercise its jurisdiction consistent with the
provisions of the enactment. To put it
differently, the fact that the High Court has
wide jurisdiction under Article 226 of the
Constitution, does not mean that it can
disregard the substantive provisions of a
statute and pass orders which can be settled
only through a mechanism prescribed by
the statute.

31. In view of what has been stated
above, the writ petition filed by the
promoter
fails
and
is
accordingly
dismissed.
----------
(2020)12ILR A150
ORIGINAL JURISDICTION
CRIMINAL SIDE
DATED: LUCKNOW 14.12.2020

BEFORE

THE HON'BLE ALOK MATHUR, J.

Application U/S 482/378/407 No. 770 of 2015

C.B.I., New Delhi ...Applicant
Versus
State of U.P. & Anr. ...Opp. Parties

Counsel for the Applicant:
Amarjeet Singh Rakhra, Varun Pandey
12 All. C.B.I., New Delhi Vs. State of U.P. & Anr.
151
Counsel for the Opp. Parties:
Govt. Advocate, Pranshu Agarwal

Criminal Law - Code of Criminal Procedure,
1973-
Section
397(2)-
Section
311-
Maintanability-Rejection of an application
under section 311 of the Cr. P. C. would
amount to an interlocutory order against
which a revision is not maintainable as per
section 397(2) of the Cr. P. C. and the
judgment would be no-est and of no
consequence. Further, even the Additional
District and Sessions Judge ruled against
the petitioner and therefore no interference
is required in the present petition with the
order of trial court.

An order passed u/s 311 Cr.Pc, being an
interlocutory order, no criminal revision is
maintainable against it.

Criminal
Law
-
Code
of
Criminal
Procedure, 1973- Section 164- Section
281- Indian Evidence Act, 1872- Section
74- The petitioner is requiring summoning
of the Judicial Officer only with regard to
giving evidence to the fact that the
statement was made voluntarily and was
not taken under pressure as deposed by
the witnesses during trial. In light of the
provisions of section 164 read with
section 281 of the Cr. P. C. the statement
of the complainant as well as the other
witnesses of the prosecution were to be
recorded in the manner provided in the
said sections and further no declaration
was required by the Magistrate with
regard
to
the
voluntariness
of
the
statement as it was only a statement of
the complainant. The application of the
petitioner
requiring
summoning
of
a
judicial officer to prove the voluntariness
of
the
statement
was
clearly
misconceived. The statement recorded
under section 164 of the Cr. P. C. would be
a public document as per Section 74 of the
Evidence Act and, therefore, does not
require any formal proof by summoning
the Magistrate to prove the same.

The statement made u/s 164 of the Cr.Pc is a
public document and does not require any
declaration from the judicial officer as to the
voluntariness of the said statement.

Revision partly allowed. (Para 17, 25, 26)
(E-10)

Judgements/ Case law relied upon:-

1. U.O.I Vs Orient Engg.& Commercial Co. Ltd.,
(1978) 1 SCC 10

2. Sethuraman Vs Rajamanickam (2009) 5 SCC
153

3. Asif Hussain Vs St. of U.P. & anr.2007 SCC
online All 1125

4. Mohd. Jamiludin Nasir Vs St.of W.B., (2014) 7
SCC 443

5. Guruviindapalli Anna Rao Vs St. of A.P. [2003
Crl. L. J. 3253]

(Delivered by Hon'ble Alok Mathur, J.)

1.

The
entire
controversy
encompassing this petition can aptly be
summed up in the following words of
Bentham:-

"Witnesses are the eyes and ears
of justice. If the witness himself is
incapacitated from acting as eyes and ears
of justice, the trial gets putrefied and
paralyzed, and it no longer can constitute a
fair trial"

2.

The
Central
Bureau
of
Investigation has approached this Court
with the prayer to quash the order dated
19/08/2014 passed by the Special Judge,
C.B.I., Lucknow in Criminal Revision
No.711 of 2014 (CBI versus Shiv Saran
Upadhaya) as well as the order dated
10/03/2014 passed by Special Judicial
Magistrate, C.B.I., Lucknow in case No.2
of 2014, whereby the application made by
the Central Bureau of investigation for
152 INDIAN LAW REPORTS ALLAHABAD SERIES
issue of summons to 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 witness to prove the
voluntariness of statements, has been
rejected.

3. It has been submitted by the
counsel for the petitioner that the opposite
party No.2, who has been the erstwhile
President of the Central Bar Association,
District Court Lucknow, on 06/11/2008
along with a group of lawyers called for a
strike and reached the District Court
Campus,
Lucknow
and
asked
the
Chaukidar Shri Mohd Anees and Shri
Dinesh Kumar Verma, Lift Operators to
hand over the keys of the multi-storey
building and lift, with a view to paralyze
the functioning of the District Court; that
the said employees of the District Court
refused to hand over the keys of the multistorey building and lift to the group of
lawyers headed by opposite party No.2, due
to which they were mercilessly beaten and
keys were forcibly snatched from them.

4. The aforesaid incident was
Informed to the then Districts and Sessions
Judge and a request was made to deploy
additional forces so that peace would be
restored in the District Court campus as due
to the assault and misbehaviour with
District Court Employees, their colleagues
had started an agitation resulting in
derailment of court proceedings.

5. Initially an FIR no. 460/2008 was
registered at Police Station-Wazirganj,
Lucknow on 06/11/2008 against opposite
party No.2 and 15-20 other unknown
advocates under sections 322, 353, 504,
506, 307 IPC, Section 7 of the Criminal
Law Amendment Act and Section 3 of
Prevention of Damage to Public Property
Act. A complaint in this regard was given
by Chaukidar Shri Mohd Anees which was
duly forwarded by the District and Sessions
Judge.

6. The investigation was conducted by
the police and the charge sheet was forwarded
to the Circle Officer on 26/08/2009 which was
duly returned to the Investigating Officer with
the remark that the address of the accused
(opposite party no.2) has not been mentioned
and there is no details of the other 15-20
advocates who have been mentioned in the
First Information Report.

7. The investigating officer on
15/11/09 submitted a final report (closure)
to the Superintendent of Police (City)
(West), Lucknow mentioning that the
complainant witnesses were examined but
they were not ready to give any evidence
against the accused. Subsequently a final
report was filed by the local police on
30/10/2009 which was accepted by the
court on 18/02/2010.

8. The aforesaid developments came
to the knowledge of this Court while
hearing writ petition No. 9925 (MB) 2010
and, by means of order dated 28/10/2010 it
directed that the investigation of the case be
done by the C.B.I.

9. During investigation by the C.B.I.
the
complainant
Shri
Mohd
Anees
confirmed the allegations in the statement
given under section 161 Cr.P.C. and also
specifically named opposite party No.2.
Similarly, other five persons who are
employees of the District Court, Lucknow
were examined and the statements under
Section 161 Cr.P.C. were recorded and all
of them confirmed the version of the
complaint.
12 All. C.B.I., New Delhi Vs. State of U.P. & Anr.
153

10. Statements under section 164 Cr.
P .C. of PW1 to PW6 were also recorded,
where these witnesses have voluntarily
supported
the
version
of
the
first
information report as well as the previous
statement under section 161 of the Cr.P.C.

11. During trial PW1 to PW4 and
PW6 turned hostile, which led to the filing
of the application requesting for the
appearance of Special Judicial Magistrate
(Pollution) Lucknow. The trial court by
means of the impugned order dated
10/03/2014 rejected the application, against
which the revision was preferred before the
District and Sessions Judge, Lucknow
which was also rejected by means of order
dated
19/08/2014
which
has
been
impugned before this Court in this petition.

12. It has been contended by Shri
Shiv P. Shukla, learned counsel appearing
for the petitioner that five prosecution
witnesses after having been examined and
having the statement recorded under
section 161 Cr. P.C. were produced before
Special Judicial Magistrate, where the
statements under section 164 Cr. P. C. were
recorded, have subsequently turned hostile
during the trial. They have stated that the
statements under section 164 Cr. P. C. were
recorded under pressure. The C.B.I. in the
aforesaid circumstances wanted to examine
the Special Judicial Magistrate before
whom the said statements were recorded to
prove that the statements were recorded
voluntarily contrary to what has been stated
by the said witnesses during trial.

13. Opposing the petition counsel for
opposite party No.2 Sri Pranshu Agarwal,
Advocate submitted firstly that the petition
under section 482 was not maintainable in
as much as the application under section
311 of the Cr. P. C. was rejected by the trial
court against which the revision was
preferred before the Additional District
Judge. The rejection of an application
under section 311 of the Cr. P. C. amounts
to an interlocutory order, against which no
revision was maintainable, and also that
once revision has been rejected, a petition
under section 482 Cr.P.C. would not be
maintainable.

14. Secondly, it was submitted that
the statement under Section 164 of the Cr.
P. C. was a public document and it was not
necessary
to
summon
the
Judicial
Magistrate to prove the authenticity of such
document and, therefore, the application for
summoning of the Judicial Magistrate was
rightly rejected. He further submitted that
an embargo was placed as per the
provisions of Section 121 of the Evidence
Act for summoning of judicial officers and,
therefore, the Judicial Magistrate cannot be
summoned to give evidence with regard to
the fact where he was acting in the capacity
of a judicial officer.

 In support of his contentions
reliance has been placed on the case of
Union of India Vs. Orient Engg.&
Commercial Co. Ltd., (1978) 1 SCC 10 at
page 11 as under:-

"Counsel for the appellant has
objected, in this appeal, to the examination,
as a witness, of an arbitrator who has given
his award on a dispute between the
appellant and the 1st respondent. His
contention is that, on broad principle and
public policy, it is highly obnoxious to
summon
an
arbitrator
or
other
adjudicating body to give evidence in
vindication of his award. This is a
wholesome principle as- is evident from s.
121 of the Indian Evidence Act. That
provision
states
that
no
Judge
or
Magistrate shall, except upon the special
154 INDIAN LAW REPORTS ALLAHABAD SERIES
order of some court to which he is
subordinate be compelled to answer any
questions as to his own conduct in court as
such Judge or Magistrate or as anything which
came to his knowledge in court as such Judge or
Magistrate, but he may be examined as toother
matters which occurred in his presence whilst he
was so acting. Of course, this--section does not
apply proprio vigore to the situationpresent here.
But it is certainly proper for the court to bear in
mindthe reason behind this rule when invited to
issue summons to an arbitrator. Indeed, it will be
a very embarrassing and, in many cases,
objectionable if every quasi-judicial authority or
tribunal were put to the necessity of greeting into
the witness box and testify as to what weighed in
his mind in reaching his verdict. We agree with
the observations of Walsh, A.C.J. in Khub Lal v.
Bishambhar Sahai(1) where the learned Judge
has pointed out that the slightest attempt to get to
the materials of his decision,, to get back to his
mind and to examine him as to why and how he
arrived at a particular decision should be
immediately
and
ruthlessly
excluded
as
undesirable."

15. The first objection raised by the
counsel for the opposite party is with
regard to the maintainability of the petition
under section 482 Cr.PC. Undoubtedly, the
rejection of an application under section
311 of the Cr. P. C. would amount to an
interlocutory order against which a revision
is not maintainable as per section 397(2) of
the Cr. P. C. This aspect of the matter has
been considered by the Hon'ble Supreme
Court in the case of Sethuraman vs
Rajamanickam (2009) 5 SCC 153 wherein
the Supreme Court has held:-

"5. Secondly, what was not
realized was that the order passed by the
Trial Court refusing to call the documents
and rejecting the application under Section
311 Cr.P.C., were interlocutory orders and
as such, the revision against those orders
was clearly barred under Section 397 (2)
Cr.P.C."

16. The Division Bench of this Court
in the case of Asif Hussain vs State of U.P.
and another reported in 2007 SCC online
All 1125 has also taken the same view and
held:-

"5. It has been held by a large
number of decisions of this Court as well as
Supreme Court that order summoning or
refusing
to
summon
witnesses
are
interlocutory as they do not decide any
substantive of right of the litigating parties,
which are in an issue at the trial. Again the
number of such decision has been referred
to in the referring order of the learned
single
judge
dated
30/11/2006
and,
therefore it is not necessary to reproduce
the same here.

6. We therefore, answer the
reference by holding that the order of
learned Sessions Judge under section 3 Cr.
P. C. refusing to summon witnesses, sought
to be called by the accused, is a purely
interlocutory order from the point of view
of the accused - applicant and no revision
again the same is maintainable."

17. Considering the aforesaid legal
proposition which is squarely applicable to
the facts of the present case, once the
application under section 311 of the Cr. P.
C. was rejected by the trial court, it was not
open
for
the
Central
Bureau
of
Investigation to move a revision under
section 397 before the Additional District
& Sessions Judge. The revision, therefore,
was not maintainable and the judgment
would be no-est and of no consequence.
Further, even the Additional District and
Sessions Judge ruled against the petitioner
and therefore no interference is required in
12 All. C.B.I., New Delhi Vs. State of U.P. & Anr.
155
the present petition with the order of trial
court.

18. To consider the arguments raised
by the applicant even on merits it is
necessary to go through the various
statutory provisions in this regard.

19. According to section 164 Cr. P. C.
:-

"164. Recording of confessions
and statements.

(1) Any Metropolitan Magistrate
or Judicial Magistrate may, whether or not
he has jurisdiction in the case, record any
confession or statement made to him in the
course of an investigation under this
Chapter or under any other law for the
time being in force, or at any time
afterwards before the commencement of the
inquiry
or
trial:
Provided
that
no
confession shall be recorded by a police
officer on whom any power of a Magistrate
has been conferred under any law for the
time being in force.

(2) The Magistrate shall, before
recording any such confession, explain to
the person making it that he is not bound to
make a confession and that, if he does so, it
may be used as evidence against him; and
the Magistrate shall not record any such
confession unless, upon questioning the
person making it, he has reason to believe
that it is being made voluntarily.

(3) If at any time before the
confession
is
recorded,
the
person
appearing before the Magistrate states that
he is not willing to make the confession, the
Magistrate shall not authorise the detention
of such person in police custody.

(4) Any such confession shall be
recorded in the manner provided in section
281 for recording the examination of an
accused person and shall be signed by the
person making the confession; and the
Magistrate shall make a memorandum at
the foot of such record to the following
effect:-" I have explained to (name) that he
is not bound to make a confession and that,
if he does so, any confession he may make
may be used as evidence against him and I
believe that this confession was voluntarily
made. It was taken in my presence and
hearing, and was read over to the person
making it and admitted by him to be
correct, and it contains a full and true
account of the statement made by him.

(Signed) A. B. Magistrate".

(5) Any statement (other than a
confession) made under sub- section (1)
shall
be
recorded
in
such
manner
hereinafter provided for the recording of
evidence as is, in the opinion of the
Magistrate, best fitted to the circumstances
of the case; and the Magistrate shall have
power to administer oath to the person
whose statement is so recorded.

(6) The Magistrate recording a
confession or statement under this section
shall forward it to the Magistrate by whom
the case is to be inquired into or tried."

20. According to the aforesaid provision if
any confessional statement is being recorded
during course of investigation before the Judicial
Magistrate then it has to be ensured that the
person making such a statement is making it
voluntarily and in case there is doubt in the mind
of the Magistrate that the same is not being made
voluntarily, he has sufficient discretion to decline
from recording such a statement.

21. As per the dictum of the Apex
court in the case of Mohd. Jamiludin
Nasir v. State of W.B., (2014) 7 SCC 443
wherein it has been held:-

"21. Going by the prescriptions
contained in Section 164 Cr. P. C., what is
156 INDIAN LAW REPORTS ALLAHABAD SERIES
to be ensured is that the confession is made
voluntarily by the offender, that there was
no external pressure particularly by the
police, that the person concerned's mindset
while
making
the
confession
was
uninfluenced by any external factors, that
he was fully conscious of what he was
saying, that he was also fully aware that
based on his statement there is every scope
for suffering the conviction which may
result in the imposition of extreme
punishment of life imprisonment and even
capital punishment of death, that prior to
the time of the making of the confession he
was in a free state of mind and was not in
the midst of any persons who would have
influenced his mind in any manner for
making the confession, that the statement
was made in the presence of the Judicial
Magistrate and none else, that while
making the confession there was no other
person present other than the accused and
the Magistrate concerned and that if he
expressed his desire not to make the
confession after appearing before the
Magistrate, the Magistrate should ensure
that he is not entrusted to police custody.
All the above minute factors were required
to be kept in mind while recording a
confession made under Section 164 CrPC
in order to ensure that the confession was
recorded at the free will of the accused and
was not influenced by any other factor.
Therefore, while considering a confession
so recorded and relied upon by the
prosecution, the duty of the Sessions Judge
is, therefore, to carefully analyse the
confession keeping in mind the above
factors and if while making such analysis
the learned Sessions Judge develops any
iota of doubt about the confession so
recorded, the same will have to be rejected
at the very outset. It is, therefore, for the
Sessions Judge to apply his mind before
placing reliance upon the confessional
statement made under Section 164 CrPC
and convince itself that none of the above
factors were either violated or given a goby to reject the confession outright.
Therefore, if the Sessions Judge has chosen
to rely upon such a confession recorded
under Section 164 CrPC, the appellate
court as well as this Court while examining
such a reliance placed upon for the purpose
of conviction should see whether the
perception of the courts below in having
accepted the confession as having been
made in its true spirit provides no scope for
any doubt as to its veracity in making the
statement by the accused concerned and
only
thereafter
the
contents
of
the
confession can be examined."

22. In Guruviindapalli Anna Rao Vs.
State of A.P. [2003 Crl. L. J. 3253], a
Division Bench of the Andhra Pradesh
High Court held that since the previous
statement of a witness under Section 164
Cr. P. C., has been recorded by a
Magistrate, it is a public document, the
Magistrate need not be summoned and
examined as a witness. The Division Bench
observed as under :

"7.We would like to put one more
discrepancy on record, viz., that while
recording
evidence,
the
learned
II
Additional Sessions Judge had summoned
the I Additional Munsif Magistrate, Tenali
(PW.10) to prove the statement of P.W.1
recorded by him under Section 164 Cr.P.C.
This Court has already ruled if any
Magistrate records the statement of a
witness under Section 164 Cr.P.C, it is not
necessary for the Sessions Judges to
summon that Magistrate to prove the
contents of the statement recorded by him.
This Court has already ruled that when a
Magistrate,
discharging
his
official
functions as such, records the statement of
12 All. C.B.I., New Delhi Vs. State of U.P. & Anr.
157
any witness under Section 164 Cr.P.C, such
statement is a 'public document' and it does
not require any formal proof. Moreover, it
is seen that the learned II Additional
Sessions Judge, Guntur, while recording the
evidence of the I Additional Munsif
Magistrate, Tenali (PW.10), has exhibited
the statement of P.W.1 recorded by the
Magistrate as Ex.P.10. As a matter of fact,
such statement cannot be treated as a
substantive
piece
of
evidence.
Such
statement can be made use of by the
prosecution
for
the
purpose
of
corroboration, or by the defence for
contradiction, under Section 145 of the
Evidence Act. Therefore, the II Additional
Sessions Judge, Guntur, is directed to note
the provisions contained in Section 145 of
the Evidence Act. Even if a statement is
recorded by a Magistrate, it is not a
substantive piece of evidence, but it is only
a previous statement."

23. The manner of
recording
confessions and statements has been dealt
differently in Section 164 Cr. P. C. With
regard to recording of confession it has
been provided under subsection (2) the
Magistrate is bound to explain to the person
making the same about the confession
about to be recorded and its impact upon
the person making, and further that a
declaration has to be made by the
Magistrate with regard to the fact that the
Magistrate has duly explained to the person
making it about the nature of the confession
and also that the same is voluntary. With
regard to a statement other than confession,
has to be recorded in the manner provided
for recording of evidence and further there
is one more distinction, as laid down in sub
clause (4) of section 164 which provides
that while recording a confession a
declaration is to be made by the Magistrate
that the same has been made voluntary and
also that the same has been duly explained
to the person making it.

24.

Considering
the
aforesaid
statutory provisions in light of the facts of
the instant case, it is clear that the petitioner
is requiring summoning of the Judicial
Officer only with regard to giving evidence
to the fact that the statement was made
voluntarily and was not taken under
pressure as deposed by the witnesses
during trial.

25. In light of the provisions of
section 164 read with section 281 of the Cr.
P. C. the statement of the complainant as
well as the other witnesses of the
prosecution were to be recorded in the
manner provided in the said sections and
further no declaration was required by the
Magistrate with regard to the voluntariness
of the statement as it was only a statement
of the complainant. The application of the
petitioner requiring summoning of a
judicial officer to prove the voluntariness of
the statement was clearly misconceived.

26. The statement recorded under
section 164 of the Cr. P. C. would be a
public document as per Section 74 of the
Evidence Act and, therefore, does not
require any formal proof by summoning the
Magistrate to prove the same. This view of
the matter has been has been so interpreted.

27. Learned trial court has rightly
rejected the application moved under
Section 311 Cr. P. C. for summoning the
Judicial Officer and no interference is
required to be made with the said order.

28. In light of the above, the order
dated 19/08/2014 passed by the Special
Judge, C.B.I., Lucknow (Court No.4) in
Criminal Revision No.711 of 2014 (CBI
158 INDIAN LAW REPORTS ALLAHABAD SERIES
versus Shiv Saran Upadhaya) is set aside
and the order dated 10/03/2014 passed by
Special
Judicial
Magistrate,
C.B.I.,
Lucknow in case No.2 of 2014 (C.B.I. Vs.
Shiv Sharan Upadhyay) is upheld.

29. The petition is partly allowed.
----------
(2020)12ILR A158
ORIGINAL JURISDICTION
CRIMINAL SIDE
DATED: LUCKNOW 09.11.2020

BEFORE

THE HON'BLE ALOK MATHUR, J.

Application U/S 482/378/407 No. 2384 of 2020

Manoj Kumar Yadav ...Applicant
Versus
State of U.P. & Ors. ...Opp. Parties

Counsel for the Applicant:
Sri P.K. Mishra

Counsel for the Opp. Parties:
G.A.

Criminal Law - Protection of Women From
Domestic Violence Act, 2005 - Section 19-
Section 12(1) - Report of Protection Officer-
is not mandatory- The trial court is under
obligation to consider the report of the
Protection Officer or the Service Provider
while considering the application under
Section 19 of Protection of Women From
Domestic Violence Act, 2005, if the same is
available on record. In case there is no report
available on record then the Magistrate is not
under any obligation to call for the same
before passing any orders on an application
under Section 19 of Protection of Women
From Domestic Violence Act, 2005. Section
12(1) does not mandate that an application
seeking relief under the Act be accompanied
with
the
Domestic
Incident
Report
(hereinafter referred to as ''DIR') or even
that it should be moved by a protection
officer. Even Rule 6 which stipulates the form
and manner of making application to the
Magistrate
does
not
require
that
the
Domestic Incident Report must accompany
an application for relief made under Section
12 of the Act. It is only the proviso to Section
12 of the Protection of Women from
Domestic Violence Act, 2005, which mandate
that the Magistrate shall consider the
Domestic Incident Report received by him
from the Protection Officer or the Service
Provider. No obligation to call for Domestic
Incident Report (DIR) has been imposed
upon the Magistrate.

The trial court is under obligation to consider
the report of the Protection Officer only if the
same is on record and it is not mandatory to file
the same either with the application u/s 19 or
for the Magistrate to call for it.

Protection of Women From Domestic
Violence Act, 2005 - Section 12- Nonconsideration of the report as provided
under Section 12 of the Domestic Violence
Act by the Protection Officer/Service
Provider - No such objection was raised
before the trial court and therefore it is
not open for the applicant to raise it for
the
first
time
before
this
Court
in
proceedings under Section 482 Cr.P.C.,
unless he can satisfactorily demonstrate
that he was precluded from raising the
said issue before the trial court.

Where no objection is raised before the trial
court about non-consideration of the report of
the Protection Officer, then no such objection
can be taken at this stage.

Criminal Law - Protection of Women From
Domestic Violence Act, 2005 - Section 23-
Ex parte orders -No separate application is
required to be filed for exercise of powers
under Section 23 of the Act. The magistrate
has to act on the application filed under
Section 12 of the Act and in cases he is
satisfied that the application discloses that
the respondent is committing or has
committed an act of domestic violence or
there is likelihood that the respondent may
commit an act of domestic violence, he
may
grant
an
ex-parte
order.