# Mohd. Yaseen v. State of U.P

- **Citation:** (2016) 5 ILRA 578
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2016-05-18
- **Bench:** Karuna Nand Bajpayee
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/mohd-yaseen-v-state-of-u-p-43880
- **Pages:** 11

## Headnote

This application under Section 482 Cr.P.C. has been filed by the applicant with the prayer to quash the
part of joint order dated 28.7.2012 passed by learned lower court in S.T. No. 592 of 2007, State vs. Munna
and others, under Sections 363, 366, 368, 376, 34 I.P.C., P.S.- Dhoomanganj, District-Allahabad pending
before the A.D.J. 23rd, Allahabad whereby the prayer to summon the Magistrate who had recorded the
statement of the victim u/s 164 of Cr.P.C. as well as the prayer that the court should do the spot inspection,
both have been rejected.

The impugned order does not call for any interference and the prayer for quashing the same is therefore
refused.

The application being sans merit stands dismissed in the light of the aforesaid observations.

Held: Para-

Case Law discussed:
Sheo Raj vs. State, AIR 1964 All 290,
Raju vs. State of U.P. And others, Crl. Misc
Asharfi Vs. State, 1960 All LJ 595,

## Text

578 INDIAN LAW REPORTS ALLAHABAD SERIES
No.950 of 1964 and Second Appeal No.1707 of 1966 holding that Smt. Murta Devi did not execute
any will deed in favour of the defendant Ram Niwas on 8.11.1972, were wrong and incorrect. The
defendant-appellant has failed to show that the learned first appellate court has committed any
mistake in disbelieving the unregistered will deed dated 8.11.1972 set up by defendant in his
defence, irrespective of the findings in Civil Suit No.950 of 1964.

19. As far as the execution of registered will deed by Ram Kishun in favour of the plaintiffrespondent is concerned, the findings recorded by first appellate court are not alleged to be based
on misreading of evidence or suffering from any manifest error or perversity.

20. I am of the considered view that the defendant-appellant has failed to prove the
execution of unregistered will deed dated 8.11.1972 by Smt. Murta Devi in favour of
defendant/respondent Ram Niwas, in accordance with law and provisions of Sections 63 & 74 of
Indian Succession Act and has also failed to prove her thumb impressions over it. The substantial
question of law as framed is answered accordingly.

21. In view of the discussions made above, I have come to the conclusion that the appellant
has failed to show any illegality or incorrectness in the impugned judgment and decree passed by
first appellate court in Civil Appeal No.384 of 1986 on 22.4.1988 and there is no sufficient ground
for interfering with or setting it aside the impugned judgment and decree. The appeal has got no
force and is liable to be dismissed with costs.

22. The appeal is dismissed with costs.

23. Interim order, if any, stands discharged.

24. The lower court record be transmitted back to court below with a copy of this order.
----------
ORIGINAL JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 18.5.2016

BEFORE

THE HON'BLE KARUNA NAND BAJPAYEE, J.

Application U/S 482 No.- 1229 Of 2013

Mohd. Yaseen. ...Applicant
Versus
State of U.P. ...Respondent

Counsel for the Applicant:
Deepak Dubey
5 All. Mohd. Yaseen. Vs State Of U.P.

579
Counsel for the Respondent:
Govt. Advocate, S.K. Pandey-Ii

This application under Section 482 Cr.P.C. has been filed by the applicant with the prayer to quash the
part of joint order dated 28.7.2012 passed by learned lower court in S.T. No. 592 of 2007, State vs. Munna
and others, under Sections 363, 366, 368, 376, 34 I.P.C., P.S.- Dhoomanganj, District-Allahabad pending
before the A.D.J. 23rd, Allahabad whereby the prayer to summon the Magistrate who had recorded the
statement of the victim u/s 164 of Cr.P.C. as well as the prayer that the court should do the spot inspection,
both have been rejected.

The impugned order does not call for any interference and the prayer for quashing the same is therefore
refused.

The application being sans merit stands dismissed in the light of the aforesaid observations.

Held: Para-

Case Law discussed:
Sheo Raj vs. State, AIR 1964 All 290,
Raju vs. State of U.P. And others, Crl. Misc
Asharfi Vs. State, 1960 All LJ 595,

(Delivered by Hon'ble Karuna Nand Bajpayee, J.)

1. This application under Section 482 Cr.P.C. has been filed by the applicant with the
prayer to quash the part of joint order dated 28.7.2012 passed by learned lower court in S.T. No.
592 of 2007, State vs. Munna and others, under Sections 363, 366, 368, 376, 34 I.P.C., P.S.-
Dhoomanganj, District-Allahabad pending before the A.D.J. 23rd, Allahabad whereby the prayer to
summon the Magistrate who had recorded the statement of the victim u/s 164 of Cr.P.C. as well as
the prayer that the court should do the spot inspection, both have been rejected.

2. Heard learned counsel for the applicant, learned A.G.A. for the State and learned counsel
for the opposite party no. 2. Perused the entire record.

3. Submission of the counsel for the applicant is that during the course of statement given
by the victim-girl, some topographical facts relating to geographical or topographical situation of
the town Allahabad have been denied and it was in this connection that an application under
Section 310 of Cr.P.C. was moved in the court below. But the court below has wrongly rejected the
same. Further submission is that some contradictory statements were made before the Magistrate,
who had recorded the statement of the alleged victim-girl under Section 164 of Cr.P.C. and for that
purpose the accused-applicant wanted to examine the Magistrate in order to prove those
contradictory statements. Submission is that as the prayer with regard to summoning the Magistrate
has already been rejected by the trial court, the accused will be deprived of their intrinsic right to
impeach the worth of the witnesses' testimony and the contradictions contained in the previous
statement shall remain unproved and, therefore, it shall cause prejudice to him and shall also affect
the fairness of the trial. It was also submitted by counsel for the applicant that the trial court had
580 INDIAN LAW REPORTS ALLAHABAD SERIES
only allowed the prayer to summon two other witnesses in order to show previous marriage of the
victim with the accused. The counsel has also tried to buttress his submission by placing reliance
on a Full Bench decision given by this Court in Sheo Raj vs. State, AIR 1964 All 290 and has
tried to show that summoning of Magistrate is necessary in order to prove the statement given by
the victim u/s 164 Cr.P.C.

4. I have perused the record and the impugned order in the light of the submissions made at
the Bar.

5. The impugned order indicates judicial application of mind and the facts and
circumstances of the case have been carefully gone into and judicious decision has been arrived at
by the trial court. So far as the application under Section 310 of Cr.P.C. is concerned, it is true that
the courts have the power to examine the spot at any stage of inquiry or trial, if in its opinion, it is
necessary to do so for the purpose of proper appreciation of evidence. But it does not mean to say
that whenever an application to the same effect is moved on behalf of either side, the court shall be
under compulsion to inspect the spot. It is for the court to adjudge the exigency of the spot
inspection. In the considered view of the trial Court such an application was not needed in the light
of the available record of the case and, therefore, this Court has also no reason to take a different
view in the matter and meddle with the judicial discretion of the trial court. So far as the prayer
with regard to summoning of the two witnesses of 'Nikah' are concerned, the same prayer has
already been allowed and therefore, there is no need to go into that aspect of the matter. The only
question alive for this Court to consider is the expediency or the need to summon the Magistrate,
who had recorded the statement of the victim-girl under Section 164 of Cr.P.C. In this regard, it
may be very relevant to mention that the trial court has primarily rejected the application seeking
the summoning of the Magistrate on the ground that before recording the statement of the accused
under Section 313 of Cr.P.C. a similar application seeking the summoning of the Magistrate was
also made on behalf of the accused but the same was rejected by the court by a speaking order
dated 18.3.2011. The trial court was of the view that because a similar application had already been
rejected and therefore, there was no need to pass another order again and allow the same
application.

6. Though this order dated 18.3.2011 has not been brought on record by applicant's
counsel, but the perusal of the counter affidavit filed on behalf of opposite party no.2 would reveal
that the same has been annexed as CA-1 along with the counter affidavit.

7. This Court is not having the advantage to go through the statement of the victim girl
given before the trial court as the same has not been brought on record on behalf of either side but
it transpires from the perusal of the earlier order dated 18.3.2011 passed by the trial court that the
court had considered one very relevant aspect of the matter and it was taken note of by the trial
court that when the victim-girl was examined in the court, she specifically admitted her previous
statement recorded by the Magistrate under Section 164 of Cr.P.C. It appears that the statement was
read out to the victim and she has in categorical terms admitted that she had given the said
statement which was recorded by the Magistrate. It is also so clear from the perusal of order dated
5 All. Mohd. Yaseen. Vs State Of U.P.

581
18.3.2011 that the previous statement recorded under Section 164 of Cr.P.C. has already been
exhibited by the court in the light of the admission made by the victim girl. As the statement has
already been exhibited therefore, if this witness at some later stage of her examination, has
prevaricated or denied some part of her statement subsequently then such denial shall not be of any
significance and in the light of the admission of the victim-girl itself, it is not, at all, necessary that
a Magistrate, who recorded the statement of the victim-girl under Section 164 of Cr.P.C., should
again be called in order to prove something which has already been admitted at some stage of
victim's examination and on the basis of which the statement has already been exhibited as exhibit
Ka-2. Even otherwise, this statement was recorded by the Magistrate in the official capacity and the
correctness of the same may be presumed by the court u/s 114 of the Indian Evidence Act. It may
be of use to quote Section-114 of the Indian Evidence Act here which reads as follows :

114. Court may presume existence of certain facts. -The Court may presume the
existence of any fact which it thinks likely to have happened, regard being had to the common
course of natural events, human conduct and public and private business, in their relation to the
facts of the particular case.
Illustrations
The Court may presume-
(a) ....................
(b) ....................
(c) ....................
(d) ....................
(e) That judicial and official acts have been regularly performed;

8. It is abundantly clear from the perusal of the above statute and the relevant illustration
given therewith that the correct recording of the statement given before a Magistrate u/s 164
Cr.P.C. may be safely presumed under law. In this regard reference may be also made to the
observations made by a Division Bench of this Court in the case of Raju vs. State of U.P. And
others, Crl. Misc. Writ Petition No.3567 of 2012, which were to the following effect :

"On the reasons we have just assigned, we are of the opinion that the whole exercise
of recording the statement under Section 164 Cr.P.C. has a presumption of regularity attached to
it. It has to be presumed that the recording of the statement under Section 164 Cr.P.C. had
regularly been performed as is envisages by Section 114 of the Indian Evidence Act. ......"

9. No doubt, such a presumption like many other presumptions shall be rebuttable and the
party concerned if it so desires can always challenge the same and also bring material or proof to
demonstrate, if it can do so, that the statement in question was not legitimate or has not been
correctly recorded. It also goes without saying that it shall require very strong, cogent and
convincing material to dislodge a statutory presumption and a mere bald suggestion challenging the
legitimacy of such official acts will not be sufficient or be of any avail. It must also not be lost sight
of that such a presumption is only about the correct recording or the regular performance of the act,
and certainly not about the truthfulness of its contents.
582 INDIAN LAW REPORTS ALLAHABAD SERIES
10. So far as the context of the case at hand is concerned, considering the fact that the
previous statement of the victim under Section 164 of Cr.P.C. was recorded by the Magistrate in
the official capacity, coupled with the fact of admission of the victim-girl itself and also keeping in
perspective the fact that the statement has already been exhibited, this Court is of the view that no
useful purpose shall be served by calling the Magistrate again for the purpose of proving the
statement which has already been admitted at some stage by the victim during the course of her
examination. It is not unknown in our experience that a witness may admit sometimes one fact and
then deny the same at a later stage. But such prevarication on the part of the witness is not a good
ground to summon the Magistrate to prove something which has already been exhibited. What shall
be the value of the previous contradictory statement is for the court to adjudge. Calling the
Magistrate again shall only result in profligate waste of public time and money in such
circumstances. The exhibited copy of the same shall be sufficient to prove the contradictory
previous statement recorded by the Magistrate. In fact in the peculiar facts and circumstances of
this particular case even a certified copy of the statement could have been sufficient as there is
nothing on record to indicate that the prosecution side of the state has either challenged its
correctness or is not accepting it to be a genuine document. This court also must hasten to add that
there may be some cases in which the trial court in its discretion may find it expedient to summon
the Magistrate to be examined by the prosecution or by the accused at appropriate stage at their
request or even to examine the Magistrate at its own instance in order to arrive at a just decision of
the case, if the facts and the circumstances of the case warrant such course of action. That power of
the court shall always remain unmitigated and untrammelled. The question is more of the
appropriateness,expediency or the desirability to undertake such a course even when there may be
no compulsive mandate of law to do so. It all depends upon the peculiar facts of each case which
may infinitely vary. Both the counsels have also admitted that the original statement recorded by
the Magistrate forms part of the lower court's record.

11. But as the applicant's counsel has placed reliance on the Full Bench decision of this
Court given in Sheo Raj Vs. State (supra) and has tried to show that in the light of what has been
held in case of Sheo Raj, the summoning of the Magistrate is necessary to prove the statement
given by the witness u/s 164 Cr. P.C., it would be appropriate to reflect and deal with this aspect of
the argument raised on behalf of the applicant at some length. The point in issue involved before
the aforesaid Full Bench had emanated from the background that in the case of Asharfi Vs. State,
1960 All LJ 595, it had been found by a Division Bench of this Court that the common practice
prevailing in Uttar Pradesh was to summon the Magistrates during the trial for proving the contents
of the identification memos prepared by them during the course of the identification parade. The
practice was held totally unnecessary as the same caused needless waste of public time and money.
It was opined therefore that if the identification parade was held by the Magistrate of the first Class
or by the Magistrate of second class specially empowered for this purpose such an identification
memo shall be admissible as evidence without proof. But in another Division Bench case of State
Vs. Chandrapal (Govt. Appeal No. 1931 of 1961 DA 18.8.1962 (Alld) a conflicting view was
expressed by the court and it was held that the identification memo cannot be presumed to be
genuine and it must be proved to be so by evidence. In the earlier case of Asharfi, section 80 of the
Indian Evidence Act was found applicable to such identification memos while in the latter case
5 All. Mohd. Yaseen. Vs State Of U.P.

583
Section 80 of Indian Evidence Act was held inapplicable. It was in the backdrop of this dichotomy
of judicial views that the matter was placed before the Full Bench. After expatiating upon several
related aspects and the legal terms involved in the controversy the Full Bench expressed its
disagreement with the view taken in Asharfi's case (supra) and it was held that the identification
memo by itself cannot be read as evidence and the same has to be proved by calling the identifying
witness or the Magistrate. The contention raised by the applicant's counsel before this Court is that
identification memo is also a kind of statement of the witness given before the Magistrate and
recorded by him u/s 164 Cr.P.C., therefore, all kind of statements recorded by the Magistrate u/s
164 Cr.P.C. can be proved only by calling the Magistrate otherwise the same shall remain
inadmissible or unusable by the accused and the contradiction between the two versions shall
remain unproved.

12. This Court has carefully considered this aspect of the matter but after going through the
aforesaid cases and other authorities on the point and also the relevant provisions of the Indian
Evidence Act as well as those of the Criminal Procedure Code it is difficult to fall in agreement
with the submissions raised by the counsel in this regard for various reasons.

13. First of all it may be mentioned that the actual controversy involved before the Full
Bench was whether contents of the identification memo be treated as substantive piece of evidence
without the maker of the statement or the Magistrate who recorded the same being produced in the
court. Before referring further to the dicta of the Full Bench, it must be kept in perspective that in
order to prove the truthfulness of any fact the witness must come in the court and state about the
same on oath. The statement given by the witness in court is substantive piece of evidence. But in
order to give credibility to his version and draw corroboration, he can also prove some documents
in that regard. For illustration it may be said that if an accused ''A' has killed the deceased ''B' and
this commission of murder has been witnessed by one ''C' then in order to prove the aforesaid fact,
the witness ''C' must may come in the court and state on oath that he has seen ''A' committing the
murder of ''B'. Such a statement will be the evidence of murder or, to express it even more
precisely, it will be the substantive evidence in proof of the murder committed by ''A'. Now if the
witness ''C' is also the first informant of the case, he can also prove the F.I.R. lodged by him
containing the same version in order to draw corroboration in support of what has been stated by
him in the court. The First Information Report is the previous statement of the first informant
witness ''C' given at or about the time of occurrence with regard to the same. If what has been
stated by the witness ''C' in the court happens to be in consonance with the contents of the F.I.R.
then the prosecution may seek to use such F.I.R. as corroborative piece of documentary evidence.
The F.I.R. by itself cannot be used as substantive piece of evidence and can be used either to
corroborate or to contradict the maker thereof after complying with the requirements of Section 145
of the Indian Evidence Act. So far as the method to prove it is concerned, the F.I.R. may be proved
either by the author himself, if it is in his handwriting or is under his signature. It can also be
proved by the scribe if the same was taken down by him in his hand at the dictation of the first
informant. Under certain circumstances, the person acquainted with the handwriting or the
signature of the author can also prove the same. But it shall always remain a corroborative piece of
evidence and shall not become substantive piece of evidence in the proof of the contents thereof,
584 INDIAN LAW REPORTS ALLAHABAD SERIES
unless some specific provision of law declares it to be evidence in proof of the same. There are
situations and there are provisions specifically enacted by the Legislature in the Code where a
particular document by itself may be treated as evidence in proof of its contents without production
of its author in the court. It may be useful here to refer to Section 293 and Section 294 of Cr.P.C. in
this regard. Section 293 reads as follows :

293. Reports of certain Government scientific experts- (1) Any document
purporting to be a report under the hand of a Government Scientific expert to whom this section
Applies, upon any matter or thing duly submitted to him for examination or analysis and report in
the course of any proceeding under this Code, may be used as evidence in any inquiry, trial or
other proceeding under this Code.
(2) ...............................................................................................
(3)................................................................................................
(4).................................................................................................
Similarly Section 294 Cr.P.C. may also be quoted which reads as follows:

294. No formal proof of certain documents.-(1)Where any document is filed
before any court by the prosecution or the accused, the particulars of every such document shall be
included in a list and the prosecution or the accused, as the case may be, or the pleader for the
prosecution or the accused, if any, shall be called upon to admit or deny the genuineness of each
such document.

(2) The list of document shall be in such form as may be prescribed by the State
Government.

(3) Where the genuineness of any document is not disputed, such document may
be read in evidence in any inquiry, trial or other proceeding under this Code without proof of the
signature of the person to whom it purports to be signed:

14. It is so clear from the aforesaid provisions that a particular document containing some
version of some author by itself can not be treated as evidence in proof of its contents unless it is
specifically provided by law.

15. In fact it shall also be very pertinent to take note of one more very crucial amendment
made in the Criminal Procedure Code with regard to the admissibility of the identification memos.
This amendment seems to have directly addressed the subject matter of the controversy involved
before the aforesaid Full Bench decision of Sheo Raj vs. State. The legislature in its wisdom has
inserted Section 291-A of Cr.P.C. by the Act No.25 of 2005 (w.e.f. 13.6.2006) which is being
reproduced as follows :-

[291-A. Identification report of Magistrate. (1) Any document purporting to be a
report of identification under the hand of an Executive Magistrate in respect of a person or
5 All. Mohd. Yaseen. Vs State Of U.P.

585
property may be used as evidence in any inquiry, trial or other proceeding under this Code,
although such Magistrate is not called as a witness:

Provided that where such report contains a statement of any suspect or witness to
which the provisions of section 21, section 32, section 33, section 155 or section 157, as the case
may be, of the Indian Evidence Act, 1872 (1 of 1872), apply, such statement shall not be used under
this sub-section except in accordance with the provisions of those sections.

(2) The Court may, if it thinks fit, and shall, on the application of the prosecution
or of the accused, summon and examine such Magistrate as to the subject-matter of the said
report.]

16. A bare reading of the aforesaid section would make one thing very clear that now so far
as the identification memos are concerned they can be read as evidence in any inquiry or trial or
other proceedings although such Magistrate is not called as witness. The object and the rationale of
dispensing with the production or summoning of the Magistrate as was expressed by the Division
Bench in Asharfi's case (supra) appears to have been fully recognized by the legislature as a result
of which the aforesaid amendment has been brought into the effect in this regard. The necessity of
producing the Magistrate seems to have been obviated by the aforesaid amendment and to a great
extent, subject to the certain conditions and limitations as have been laid down in the proviso, the
ratio of the aforesaid Full Bench decision, so far as it relates to the admissibility of identification
memos as evidence is concerned, seems to have been rendered nugatory by this amendment. But
again it is so manifestly demonstrable that it has been made possible to use the previous statements
as contained in the form of identification memos as evidence only by a specific enactment made in
this regard by law. Otherwise in ordinary course and in ordinary circumstances where there is no
such specific law declaring a particular document containing some version made by some witness
to be treated as evidence there shall be very strict and limited uses permissible for such a document.

17. Elaborating upon the illustration given hereinbefore it may be further emphasized that
If the aforesaid first informant ''C' comes in the court and only states this much that he had lodged
the F.I.R. of the case available on record under his signature, such a statement shall only prove the
factum of lodging of the F.I.R. by him containing a particular version and not its truthfulness. If the
first informant does not state before the court on oath as to what was seen by him or to say it in
other words if he does not give the statement in the court that he had seen the accused ''A' killing
the deceased ''B' then in the absence of such statement which alone could be the evidence or the
substantive evidence in proof of the factum of murder done by accused ''A', the mere proving of
the factum of lodging of the F.I.R. by him containing the same version will by itself not prove
anything. The version given in the court about the happening of murder will be substantive piece of
evidence while the F.I.R. containing the same version will be only the corroborative piece of
evidence. It goes without saying that the contents of the F.I.R. like any other previous statement of
the witness can also be used for purpose of contradicting the maker thereof if the same contains any
conflicting version. Similar is the situation of many other documents. The medical examination or
the post-mortem examination done by the doctor can be another patent example of the same.
586 INDIAN LAW REPORTS ALLAHABAD SERIES
Everyday we see the doctor being produced in the court stating on oath that he had the
occasion to examine such and such injured or to have done the autopsy of some deceased and
that he had found such and such injury on the person of the victim or the deceased. This
statement given by the doctor on oath in the court becomes substantive piece of evidence in
proof of the injuries present on the body of the injured or the deceased. In order to draw the
strength of corroboration the doctor also proves the post-mortem examination report or the
injury report prepared by him in his handwriting. By proving the post mortem examination
report the doctor draws corroboration to his statement given in the court by virtue of Section157 of Indian Evidence Act because the post-mortem report was prepared by him at or about
the time of such medical examination. If the doctor himself does not state before the court as
to which injuries were found by him on the person of the victim then by merely proving the
post-mortem report or the injury report the factum of the presence of injuries will remain
unproved. Substantive evidence is the statement of the doctor given in the court to the effect
that he had seen and had found such and such injuries on the body of the victim. This piece
of evidence gets only its corroboration from post-mortem report, if both are in consonance
with each other. Now it shall not be difficult to see that the statement of a witness recorded
by the Magistrate u/s 164 Cr.P.C. is only his previous statement and the proof of this
document either by the Magistrate who recorded it or by the witness who made such
statement shall by itself not be substantive piece of evidence in proof of the contents thereof.
Such a statement like any other previous statement can be used by the prosecution for the
purpose of corroboration or by the accused for the purposes of contradicting the witnesses. If
the witness or the maker of the statement recorded u/s 164 Cr.P.C. has not been produced in
the court then such statement, which is nothing except the previous statement of particular
witness, is of hardly any use for the simple reason that this by itself not being substantive
piece of evidence there is nobody whom it may corroborate or contradict. The truthfulness of
what was stated by the witness in his statement given u/s 164 Cr.P.C. will remain unproved
in such a situation. In fact the most crucial part of Full Bench decision given in case of Sheo
Raj (supra) much before the insertion of Section-291-A in the Cr.P.C., is just the same and it
was held therein that the statement recorded u/s 164 Cr.P.C. (in the form of identification
memo) by itself cannot be held admissible as evidence in proof of its contents by raising the
presumption of its genuineness u/s 80 of Indian Evidence Act. It may be useful to quote the
observations given by the Full Bench in this regard in para 23 of the judgement, the relevant
part of which is being extracted herein below :

"23. Even after a statement or confession, recorded under Section 164,
Cr.P.C. has been formally proved, it will still not be substantive evidence and can be put to
no other use than that of contradicting the deponent thereof under Section 145, or of
corroborating him under Section 157 of the Act. (See AIR 1948 PC 38 and MANU/PR/0014.
The same is the position of an identification memorandum which contains statements within
the meaning of that word occurring in Section 164 Cr.P.C., of persons who had gone to
identify the suspects at the test identification parade. (See Sarju Singh V. Emperor
MANU/OU/0167/1925 and Lal Singh V. Emperor AIR 1925 tan 19).
5 All. Mohd. Yaseen. Vs State Of U.P.

587
That being the law, it cannot be held that by not formally proving it and
simply filing the memorandum of identification in Court, the position of the party relying
upon it is improved and it can raise presumptions mentioned in Section 80 of the Act in its
favour, so as to read the identification memorandum as substantive evidence,
................................"

18. So far as the facts of the present case are concerned, the controversy at hand in
the present case is entirely different as neither the accused nor the prosecution wanted to use
the previous statement of the victim girl as substantive evidence. The victim girl has herself
been produced and examined in the court wherein she had also admitted to have given her
statement before the Magistrate which was recorded u/s 164 of Cr.P.C. As there was some
alleged contradiction in the two versions, the accused wanted to contradict her from her
previous statement recorded u/s 164 of Cr.P.C. It is so very obvious that there was no
occasion for the prosecution to have wanted the aforesaid statement to be used as substantive
piece of evidence as the witness herself had been produced before the court where she gave
her statement against the accused which was substantive piece of evidence. Nor did the
accused intend to use the same as such, who had desired to use it only for the purposes of
contradiction. Therefore, what has been held by the Full Bench in this regard does not go
very far to help the applicant's counsel. The question involved in the case at hand is not at all
whether the statement recorded u/s 164 Cr.P.C. is usable as substantive evidence or evidence
in proof of its contents as such or not. The real question is whether the previous
contradictory statement given u/s 164 Cr.P.C. can stand proved without calling the
Magistrate or not. In this regard as has already been observed hereinbefore that so far as the
question of using or proving the statement recorded u/s 164 Cr.P.C. for the purpose of
contradicting the witness is concerned, the factum of having given the contradictory
statement before the Magistrate is provable in more than one manner. As has already been
discussed in the earlier part of this order such a statement apart from having the advantage of
being an official act, whose correct and regular performance may be presumed under law, it
can also be proved by Magistrate concerned or even by the victim herself. As has already
been noted hereinbefore that when the witness was examined in the court she was shown the
aforesaid statement recorded by the Magistrate and the question was put to her in this regard
on which she answered in affirmative and admitted to have given the same statement so
much so that the statement in question recorded u/s 164 of Cr.P.C. was duly exhibited by the
court and marked as exhibit Ka-2. In the background of these peculiar facts and the girl's
own admission in this regard the whole issue becomes redundant and gets reduced only to its
academic value.

19. In view of what has been discussed, the impugned order does not call for any
interference and the prayer for quashing the same is therefore refused.

20. The application being sans merit stands dismissed in the light of the aforesaid
observations.
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588 INDIAN LAW REPORTS ALLAHABAD SERIES
ORIGINAL JURISDICTION
CRIMINAL SIDE
DATED: LUCKNOW 19.5.2016

BEFORE

THE HON'BLE ASHWANI KUMAR SINGH, J.

Application U/s 482/378/407 No.- 1514 Of 2007

Fazl-Ul-Rahman & Anr. ...Applicants
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Applicants:
Vivek Shrotria

Counsel for the Respondents:
G.A

This petition under Section 482 Cr.P.C. has been filed by the petitioners for quashing of the order dated 14th
March, 2007 passed by learned Additional Chief Judicial Magistrate, court no. 25 in case no. 4050 of 2003,
State of U.P. Versus Fazl-Ul-Rahman and others under Sections 147, 148, 149, 307, 436, 336, 452, 332, 393,
506 IPC(relating to crime no. 231K of 2001 police station Chowk, district Lucknow), whereby the application
moved by Additional Public Prosecutor under Section 321 Cr.P.C. for withdrawal from prosecution was
rejected by court of Additional Chief Judicial Magistrate, court no. 25, district Lucknow.

I am of the considered opinion that the impugned orders suffers from illegality and infirmity and deserves to
be quashed. Accordingly, the petition is allowed and the order dated 14th March, 2007 passed by learned
Additional Chief Judicial Magistrate, court no. 25 in case no. 4050 of 2003, State of U.P. Versus Fazl-UlRahman and others under Sections 147, 148, 149, 307, 436, 336, 452, 332, 393, 506 IPC(relating to crime
no. 231K of 2001 police station Chowk, district Lucknow) is hereby quashed. The application under Section
321 Cr.P.C. is allowed. The petitioners namely Fazl-ul-Rahman and Abdul Mannan are discharged in case
crime no. Crime no. 231K of 2001, under Sections 147, 148, 149, 307, 436, 336, 452, 332, 393, 506 I.P.C.
police station Chowk, district Lucknow.

Held: Para-

Case Law discussed:
Sheonandan Paswan versus State of Biahr and others (1987)
Name Dasrat versus State of Andhra Pradesh,2014
State of Orrisa versus C. Mohapatra, AIR 1977 SCC

(Delivered by Hon'ble Ashwani Kumar Singh, J.)

1. This petition under Section 482 Cr.P.C. has been filed by the petitioners for quashing of
the order dated 14th March, 2007 passed by learned Additional Chief Judicial Magistrate, court no.
25 in case no. 4050 of 2003, State of U.P. Versus Fazl-Ul-Rahman and others under Sections 147,
148, 149, 307, 436, 336, 452, 332, 393, 506 IPC(relating to crime no. 231K of 2001 police station