# Dharmendra @ Patra v. State of U.P

- **Citation:** (2021) 10 ILRA 27
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2021-10-01
- **Case number:** Criminal Misc. Bail Application No. 31695 of 2021
- **Bench:** Samit Gopal
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/dharmendra-patra-v-state-of-u-p-46266
- **Pages:** 6

## Headnote

A. Criminal Law - Code of Criminal
Procedure,1973-Section
439
&
Indian
Penal Code,1860-Sections -376, 452, 506In the instant case, victim after giving her
statement u/s 161 of the Code levelling
allegations of rape against the accused,
has given up the same in her statement
recorded
u/s
164
of
the
Code-the
investigating officer then records the
statement of the victim again u/s 161 of
the code and puts specific questions to her
with regard to the said variations in her
statements-The
said
action
of
the
Investigating Officer is not appreciable-It
shows disrespect to the courts who have
recorded statements u/s 164 of the code
by judicial magistrate in discharge of his
judicial
functions-The
act
of
putting
specific
questions
pertaining
to
the
variations in the said two statements by
the I.O. is viewed with the impression of
clearly
challenging
the
authority
of
judicial act-the I.O. clearly exceeded his
jurisdiction
with
a
sole
purpose
to
frustrate the statements recorded by a
Magistrate.(Para 3 to 15)

B. The statement made by the victim u/s
164 of the code before the magistrate
stands on a high pedestal and sanctity
during the course of investigation than
that of her statement recorded u/s 161 of
the code by the I.O. The said statement
u/s 164 is relevant under section 35 and
72 of Indian Evidence Act, and as such,
assumes the character of being a public
document.
Though
the
Investigating
Agency
has
unfettered
powers
to
investigate the matter, but they cannot on
their whims and fancy adopt a procedure
which would clearly be challenging the
sanctity of an act done by a court of law
while
discharge
of
a
judicial
function.(Para 9 to 12)
28 INDIAN LAW REPORTS ALLAHABAD SERIES
The petition is disposed of. (E-6)
List of Cases cited:

Raju Vs St. of U.P. & ors. (2012) 78 ACC 11

## Text

10 All. Dharmendra @ Patra Vs. State of U.P.
27

15. The Registrar General of this
Court is thus directed to register a First
Information Report in the present matter
for which an investigation is needed to be
done seriously so as to cull out the truth
and appropriate action be taken against
person(s) involved in the bogus and
clandestine filing of the bail application
before this Court. The needful be done
within one month from today.

16. The Senior Superintendent of
Police, Prayagraj is directed to ensure that
the investigation is done by a responsible
and a competent police officer efficiently.

17. A copy of this order be forwarded
by the office to the learned Additional
Government Advocate for its compliance.

18. Let the matter be listed on
25.10.2021 before this Court along with a
compliance report of the Registrar General
and the learned Additional Government
Advocate for further orders.
----------
(2021)10ILR A27
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 01.10.2021

BEFORE

THE HON'BLE SAMIT GOPAL, J

Criminal Misc. Bail Application No. 31695 of
2021
with
Criminal Misc. Bail Application No. 20006 of
2021
with
Criminal Misc. Bail Application No. 30288 of
2021

Dharmendra @ Patra ...Applicant
Versus
State of U.P. ...Opposite Party

Counsel for the Applicant:
Sri Sanjay Pathak, Sri Arvind Kumar Tewari

Counsel for the Respondents:
A.G.A.

A. Criminal Law - Code of Criminal
Procedure,1973-Section
439
&
Indian
Penal Code,1860-Sections -376, 452, 506In the instant case, victim after giving her
statement u/s 161 of the Code levelling
allegations of rape against the accused,
has given up the same in her statement
recorded
u/s
164
of
the
Code-the
investigating officer then records the
statement of the victim again u/s 161 of
the code and puts specific questions to her
with regard to the said variations in her
statements-The
said
action
of
the
Investigating Officer is not appreciable-It
shows disrespect to the courts who have
recorded statements u/s 164 of the code
by judicial magistrate in discharge of his
judicial
functions-The
act
of
putting
specific
questions
pertaining
to
the
variations in the said two statements by
the I.O. is viewed with the impression of
clearly
challenging
the
authority
of
judicial act-the I.O. clearly exceeded his
jurisdiction
with
a
sole
purpose
to
frustrate the statements recorded by a
Magistrate.(Para 3 to 15)

B. The statement made by the victim u/s
164 of the code before the magistrate
stands on a high pedestal and sanctity
during the course of investigation than
that of her statement recorded u/s 161 of
the code by the I.O. The said statement
u/s 164 is relevant under section 35 and
72 of Indian Evidence Act, and as such,
assumes the character of being a public
document.
Though
the
Investigating
Agency
has
unfettered
powers
to
investigate the matter, but they cannot on
their whims and fancy adopt a procedure
which would clearly be challenging the
sanctity of an act done by a court of law
while
discharge
of
a
judicial
function.(Para 9 to 12)
28 INDIAN LAW REPORTS ALLAHABAD SERIES
The petition is disposed of. (E-6)
List of Cases cited:

Raju Vs St. of U.P. & ors. (2012) 78 ACC 11

(Delivered by Hon'ble Samit
Gopal, J.)

1. Heard Sri Sanjay Pathak learned
counsel for the applicant Dharmendra @
Patra, Sri Saroj Kumar Dubey learned
counsel for the applicants Prem Narayan
Vishwakarma
and
Vijay
Kumar
Vishwakarma, Sri Shesh Narayan Mishra
learned counsel for the applicant Nandlal,
Sri
Sanjay
Kumar
Singh,
learned
Additional Government Advocate and Sri
Akhilesh Kumar Tripathi, learned Brief
Holder for the State and perused the
material on record.

2. These three bail applications have
been connected together and have been
argued on a particular issue which is
common in all of them. Even in other
matters, the same is being encountered by
this Court.

3. As of now the merits of the cases
are not being gone into. The only specific
question which is being dealt with is as
follows:

"Whether
the
Investigating
Officer of a case can after recording the
statement of a prosecutrix/victim once
under Section 161 of the Code of Criminal
Procedure, 1973 (hereinafter referred to as
'the
Code')
who
has
supported
the
prosecution case and then in her statement
recorded under Section 164 of the Code
recorded before a Magistrate has given a
different version and more particularly does
not state about any wrongful act being
committed on her as has been recorded in
her statement under Section 161 of the
Code earlier, can again interrogate the
prosecutrix/victim under Section 161 of the
Code and put specific questions to her
pertaining to the two different versions
given by her in the said two statements and
then record the statements and proceed
with the Investigation further ?"

4. These three cases in hand are
examples of the same activity as done in
the matter during investigation.

5. The powers of Police to investigate
a matter is not under dispute. Reiterating
the same, Investigation usually starts on
information regarding to the commission of
an offence given to the Police Officer, Incharge of a Police Station and recorded
under Section 154 of the Code. If from
information so received or otherwise the
Officer In-charge of the Police Station has
reason to suspect the commission of an
offence, he or some other officer deputed
by him, has to proceed to the spot to
investigate the facts and circumstances of
the case, and if necessary, to take measures
for the discovery and arrest of offenders.
Investigation thus primarily consists of the
ascertainment
of
the
facts
and
circumstances of the case. As per the
definition of the word "investigation" as per
Section 2(h) of the Code, it includes the
proceedings under the Code for collection
of evidence conducted by a Police Officer.
The Investigating Officer is given the
power to require before himself the
attendance of any person appearing to be
acquainted with the circumstances of the
case. He has the authority to examine the
said person orally either by himself or by a
duly authorized person on his behalf. The
Officer may reproduce his statement into
writing and such writing is available in the
trial that may follow for use in the manner
10 All. Dharmendra @ Patra Vs. State of U.P.
29
provided in this behalf in Section 162 of
the Code. Section 155 of the Code
empowers the Officer In-charge of a Police
Station to make a search at any place for
seizure of anything which is believed to be
necessary for the purpose of investigation.
He also has the power to arrest person or
persons suspected of the commission of the
offence under Section 41 of the Code.

6. He has to enter the proceedings in a
diary on day to day basis, copy of which
has to be sent to the Magistrate concerned.
Upon completion of investigation he may
decide to release the suspected accused if
he is in custody on his executing a bond. If
further it appears to him that there is
sufficient evidence or reasonable ground to
put the accused to trail, he may take
necessary steps therefor under Section 170
of the Code. In either case he has to submit
a report to the Magistrate under Section
173 of the Code in the prescribed Form.

7. Thus as per the Code, the
investigation consists of the following
steps:-

(i) proceeding to the spot;

(ii) ascertainment of the facts and
circumstances of the case;

(iii) discovery and arrest of a
suspect;

(iv)
collection
of
evidence
regarding to the commission of offence
which may consists of examination of
various persons including the accused and
reducing their statements into writing, if he
needs so fit, search of places for seizure of
things necessary for investigation to be
produced at the trial, and lastly;

(v) formation of an opinion as to
whether the material collected is sufficient
to be placed before the Magistrate for
putting the accused to trial.

8. Section 164 of the Code also gives
power to the investigating agency to
forward any person for recording of his
confession and the statements before a
Magistrate. In the case of Raju Vs. State
of U.P. and others : 2012 (78) ACC 111, a
Division Bench of this Court in paragraph 9
has observed as follows:

"9. We are of the opinion that the
statement of an accused or victim or a
witness which is to be recorded under
Section 164 Cr.P.C., might be a statement
recorded during the course of investigation
of a case but that is quite different from the
statement of witnesses recorded under
Section 161 Cr.P.C. The reason is that
there is a full fledged provision under
Section
164
Cr.P.C.
authorizing
the
recording of such a statement by a judicial
Magistrate. The practise and the procedure
which is followed in recording such a
statement is that the police has to file an
application before the head of Magistracy,
who is presently the Chief Judicial
Magistrate, requesting for the statement of
such a person to be recorded. On receipt of
such an application, the Chief Judicial
Magistrate gets the relevant record before
him and thereafter passes an order in token
of receipt of such an application and
further passes an order upon the same and
thereafter direct by the same order for
deputation of a Magistrate to record the
statement. He may also record the
statement himself. In case of other judicial
Magistrate being deputed for recording the
statement under Section 164 Cr.P.C., the
witness along with the judicial record is
transmitted
to
the
deputed
judicial
Magistrate, who records the receipt of the
record for the purpose and proceeds to
record the statement and as soon as it is
recorded, he again records the recording of
such a statement in the order-sheet of the
30 INDIAN LAW REPORTS ALLAHABAD SERIES
same record and transmits the record
along with the recorded statement under
Section 164 Cr.P.C. to the Chief Judicial
Magistrate. Thus, the whole exercise
appears judicial in nature. Not only that, it
further indicates that the orders drawn in
the above behalf as also the statement
recorded are the records of the judicial
acts performed by him in discharge of
official and judicial functions by a Judge.
The recording of the statements is enjoined
by the law of the country and the record in
the form the recorded statement under
Section 164 Cr.P.C. is the record of the act
of a public servant discharging his official
and judicial functions. In addition to that
the statement recorded under Section 164
Cr.P.C. is never taken out of the judicial
record nor it is handed over to the
Investigating Officer or any other police
officer. The copy of the statement is
allowed to be copied in the relevant part of
the
case
dairy. Thus,
the
recorded
statement under Section 164 Cr.P.C.
assumes the part of the judicial record of
that particular case and, as such, it is the
part of the case. This is the reason that we
have pointed out that in spite of being a
statement of a witness or any other
interested person during the course of
investigation, the recorded statement under
Section 164 Cr.P.C. could not, strictu
sensu, be said to be a mere statement
during investigation which could be treated
as part of the case dairy. It could never be
put at par with a statement under Section
161 Cr.P.C. and as such it could never be
said to be a part of case dairy."

9. In the matters in hand the
prosecutrix/victim
after
giving
her
statement under Section 161 of the Code
levelling allegations of rape against the
accused, has given up the same in her
statement recorded under Section 164 of
the Code. The Investigating Officer then
records
the
statement
of
the
prosecutrix/victim again under Section 161
of the Code and puts specific questions to
her with regards to the said variations in
her statements and records her answers to
the said questions.

10.

The
said
action
of
the
Investigating Officer is not appreciable.
Putting questions to the prosecutrix/victim
with regards to the change in version by her
in the statements under Section 161 of the
Code and in the statement under Section
164 of the Code, clearly shows disrespect
to the courts who have recorded the
statements under Section 164 of the Code.
The said statements under Section 164 of
the Code recorded by Judicial Magistrates
is in discharge of their judicial functions
and the act of recording of the said
statements was a judicial act which was
performed by a public servant while
discharging his judicial functions. The said
document is relevant under Section 35 of
Indian Evidence Act and also under Section
72 of Indian Evidence Act and, as such,
assumes the character of being a public
document.

11. The statement made by the
prosecutrix/victim under section 164 of the
Code before the Magistrate stands on a
high pedestal and sanctity during the course
of investigation than that of her statement
recorded under section 161 of the Code by
the Investigating Officer.

12. Though the Investigating Agency
has unfettered powers to investigate a
matter, but they cannot on their whims and
fancy adopt a procedure which would
clearly be challenging the sanctity of an act
done by a court of law while discharge of a
judicial function. By putting questions to
10 All. Dharmendra @ Patra Vs. State of U.P.
31
the
prosecutrix/victim
in
her
second
statement under Section 161 of the Code
after recording of the statement under
Section 164 of the Code relating to the
different
versions
in
the
said
two
statements, the Investigating Officer cannot
frustrate the same and also make an attempt
to make the purpose of the said exercise
look a farce.

13. The act of putting specific
questions pertaining to the variations in the
said two statements by the Investigating
Officer is viewed with an impression of
clearly challenging the authority of a
judicial act. The Investigating Officers
have clearly exceeded their jurisdiction by
proceedings to investigate in such a
manner. The same appears to be with a sole
purpose to frustrate the statements recorded
by a Magistrate.

14. Even the Uttar Pradesh Police
Regulations while dealing with the particular
duties of Police Officers for "Investigations" in
its Chapter XI do not in any manner authorize
Investigating Officers to act as such. Although
Paragraph-107 of the same states that the
Investigating Officer would not act as a mere
clerk while recordings of statements but has to
observe and infer. Paragraph-109 empowers for
recording of supplementary statements. But the
manner in which supplementary statements in
the present matters have been recorded clearly
show that they are for the sole purpose to put
the variations to the witnesses and record the
same.

15. This court thus finds that the
manner
in
which
the
supplementary
statements are recorded and the purpose for
recording of the same is only and solely for
frustrating the purpose of statements
recorded under Section 164 of the Code
and to negate and defeat the earlier
statement of the prosecutrix/victim given
under section 164 of the Code whether it is
in favour or against the accused otherwise
the sanctity of the statement under section
164 of the Code will loose its value. The
same is neither the intent of Investigation
nor is the purpose of it.

16. The Director General of Police,
Uttar Pradesh Lucknow is directed to
look into the said new trend of
Investigation as adopted and issue
suitable guidelines for such matter so
that the sanctity and authority of judicial
proceedings are maintained and they
should not be frustrated by any act done
during Investigation.

17. The Registrar (Compliance) of
this Court and the learned counsels for the
State are directed to communicate this
order to the Director General of Police,
Uttar Pradesh Lucknow for its compliance
and necessary action within a period of one
month from today and submit a compliance
report within one week thereafter.

18. In so far as the matter relating to the
prayer made under Section 439 of the Code
of Criminal Procedure is concerned, let the
matters be detagged with each other and be
listed on 25-10-2021, as fresh before the
appropriate Bench for consideration of the
same.

19. The party shall file computer
generated copy of such order downloaded
from the official website of High Court
Allahabad.

20. The computer generated copy of
such order shall be self-attested by the
counsel of the party concerned.

21.

The
concerned
Court/Authority/Official shall verify the
32 INDIAN LAW REPORTS ALLAHABAD SERIES
authenticity of such computerized copy of
the order from the official website of High
Court
Allahabad
and
shall
make
a
declaration of such verification in writing.
----------
(2021)10ILR A32
REVISIONAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 26.08.2021

BEFORE

THE HON'BLE SARAL SRIVASTAVA, J

Civil Revision No. 4 of 2021

Babu Lal & Ors. ...Revisionists
Versus
Ravi Narayan & Ors. ...Respondents

Counsel for the Revisionists:
Sri Ram Kishore Pandey, Sri Himanshu
Raghav Pandey

Counsel for the Respondents:

A. Civil Law - Code of Civil Procedure,1908
- Section 115 - public religious trust is not
being managed properly according to trust
deed conditions-proceeds of trust are
being utilized by the applicants for their
personal use which is prohibited in the
trust deed-it had been a public trust, no
question of partition of property of the
trust between private individuals -all the
conditions which must exist to invoke
Section 92 CPC are present-Even if the
stipulation in the trust deed that any
dispute be referred to Panch will not
override statutory provision since section
92 has been incorporated with an object
that the trust which is charitable or public
religious trust should be managed as per
the wish of the Founder of the trustHence, no illegality committed by the trial
court.(Para 1 to 38)

The revision is dismissed. (E-6)

List of Cases cited:
1. Deoki Nandan Vs Murlidhar (1957) AIR SC
133

2. Ambrish Kumar Singh Vs Raja Abhushan Bran
Bramhshah & ors. (1989) All 194

3. Mahant Sita Ram Das & anr. Vs Ram Chandra
Arora & ors. (1988) ALL L J 259

4. Swami Parmatmanand Saraswati & anr. Vs
Ramji Tripathi & anr .(1974) AIR SC 2141

5. R.M. Narayana Chettiar & anr. Vs N.
Lakshmanan Chettiar & ors. (1991) AIR SC 221

6. B.S. Adityan & ors. Vs B. Ramachandran
Adityan & ors.(2004) 9 SCC 720

7. Ashok Kumar Gupta & anr. Vs Sitalaxmi
Sahuwala Medical Trust & ors. (2020) 4 SCC 321

8. Dhirendra Singh & ors. Vs Dhanai & ors.
(1983) AIR All 2016

9. Sri Satnarayan Ji Maharaj Virajman Mandir
Sat Narayan Dharmshala & ors. Vs Rajendra
Prasad Aggarwal & ors. (1997) AIR ALL 413

10. Karunanadhi & ors. Vs Gyan Prakash & ors.
(2014) 5 ADJ 467

(Delivered by Hon'ble Saral
Srivastava, J.)

1. The present revision has been
preferred by the defendants (hereinafter
referred to as 'applicant') against the
judgment and order dated 16.12.2020
passed by Additional District Judge, (FTC),
Mahoba granting leave to suit under
Section 92 of Code of Civil Procedure,
1908 (hereinafter referred to as 'CPC')

2. The facts, in short, are that the
respondents-plaintiffs (hereinafter referred
to as 'respondent') instituted a suit under
Section 92 of CPC praying for a decree to
remove the applicants from the trustee in
Shree Ram Laxman Janakiji Vakai Mandir,
Dubiyana, District Mohoba and further, the