# Vajid Ali v. State of U.P. & Anr

- **Citation:** (2022) 2 ILRA 571
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2021-12-21
- **Case number:** Leave to Appeal (Cri) No.5191 of 2021
- **Bench:** Mrs. Sangeeta Chandra
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/vajid-ali-v-state-of-u-p-anr-47545
- **Pages:** 7

## Headnote

(A) Criminal Law-During Trial the victim
affirmed her own statement given u/s
164 Cr.P.C.-original statement u/s 164
Cr.p.c. is lost-Application moved by the
Applicant
seeking
time
for
cross
examination-as
in
the
absence
of
statement u/s 164 cr.p.c.-no crossexamination
was
possible-Rejectedimpugned-original statement u/s 164
Cr.P.C. would be required if the victim
resiled from her statement u/s 164
Cr.P.C.-to verify the contents and to
compare them with statement made in
examination in chief-last opportunity
was
given which was not availedimpugned order not unreasoned.

Application rejected. (E-9)

List of Cases cited:-

## Text

2 All. Vajid Ali Vs. State of U.P. & Anr.
571
Section 482 is partly allowed to the extent
that summoning order dated 29.07.2015 is
hereby set aside as far as it relates with the
applicant nos. 1, 4, 5 and 6 for offence
under Section 406 IPC. Rest of the part of
the impugned summoning order will
remain intact and in force.

14. At this stage, learned counsel for
the applicants has submitted that for the
remaining sections slapped upon the
applicants, he does not want to press the
petition and seeks liberty to file bail
application before the learned trial court
which may be decided in view of law laid
by Hon'ble Supreme Court in order dated
7.10.2021 passed in Petition for Special
Leave to Appeal (Cri) No.5191 of 2021
Satender Kumar Antil versus Central
Bureau of Investigation and another.

15. Learned A.G.A. as well as Shri
Anoop Kumar Upadhyay, learned counsel
for the respondent has no objection to the
prayer made by learned counsel for the
applicants.

16. On due consideration to the
submissions of learned counsel for the
parties', it is provided that in case, the
petitioners appear before the trial court
within ten days' from today and file bail
application, the same shall be decided
expeditiously considering the law laid
down in the case of Satender Kumar Antil
versus Central Bureau of Investigation
and another (supra).

17. The present application under
Section 482 is finally decided in terms, as
indicated above.
----------
(2022)02ILR A571
ORIGINAL JURISDICTION
CRIMINAL SIDE
DATED: LUCKNOW 21.12.2021
BEFORE

THE HON'BLE MRS. SANGEETA CHANDRA, J.

Application U/S 482 No.5541 of 2021

Vajid Ali ...Applicant
Versus
State of U.P. & Anr. ...Opposite Parties

Counsel for the Applicant:
Sukh Deo Singh, Pritosh Shukla, Pramod
Kumar

Counsel for the Opposite Parties:
G.A.

(A) Criminal Law-During Trial the victim
affirmed her own statement given u/s
164 Cr.P.C.-original statement u/s 164
Cr.p.c. is lost-Application moved by the
Applicant
seeking
time
for
cross
examination-as
in
the
absence
of
statement u/s 164 cr.p.c.-no crossexamination
was
possible-Rejectedimpugned-original statement u/s 164
Cr.P.C. would be required if the victim
resiled from her statement u/s 164
Cr.P.C.-to verify the contents and to
compare them with statement made in
examination in chief-last opportunity
was
given which was not availedimpugned order not unreasoned.

Application rejected. (E-9)

List of Cases cited:-

1. St. of Delhi Vs Shri Ram Lohia, AIR 1960 SC
490

2. Utpal Das Vs St. Of West Ben., AIR 2010 SC
1894

3. R. Shaji VS St. of Ker. 2013 (14) SCC 266

4. 'Jai Prakash Singh Vs St. of Bih. & anr.
decided on 14.07.2006 reported in 2006
Criminal Law Journal 4245

5. Ashok Dulichand Vs Madhavlal Dubey & anr.
1975 (4) SCC 664
572 INDIAN LAW REPORTS ALLAHABAD SERIES
(Delivered by Hon'ble Mrs. Sangeeta
Chandra, J.)

1. Heard learned counsel for the
petitioners and learned AGA for the State.

2. This petition has been filed with the
following main prayer:-

"Wherefore, it is most respectfully
prayed that this Hon'ble Court may kindly
be pleased to quash and set aside the
impugned order dated 08/12/2021 passed
on Application of the Petitioner, in Session
Trial No. 46/2015, "State Vs. Vajid & Ors."
pending before Learned Special Judge
(POCSO Act)-12, Sultanpur, in Case Crime
No. 5/2015, under sections 363, 366, 376D
IPC read with 3/4 POCSO Act, PS
Sangrampur, District
Amethi,
in
the
interest
of
justice,
as
contained
in
Annexure-1 to this Writ Petition.

To stay the further proceeding in
Session Trial No. 46/2015, "State Vs. Vajid
& Ors." pending before Learned Special
Judge (POCSO Act)-12, Sultanpur, in Case
Crime No. 5/2015, under sections 363, 366,
376D IPC read with 3/4 POCSO Act, PS
Sangrampur, District Amethi, during the
pendency of this Petition before this
Hon'ble Court in the interest of justice."

3. The petitioner is assailing the order
dated 08.04.2021 passed in Sessions Trial
No. 46 of 2015 in Case Crime No. 5 of
2015, by which the petitioners application
for providing opportunity to cross-examine
PW-4 (the victim) has been rejected by an
unreasoned order.

4. It has been submitted that the
father of opposite party no.2 lodged FIR
on 08.01.2015, under Sections 363, 366
IPC, Police Station Sangrampur, District
Amethi, against one Asif who alongwith
the petitioner, (who was not named in the
FIR) having enticed the respondent no.2
had taken her away. After investigation
the Investigating Officer submitted a
charge sheet against the petitioner and
co-accused, Asif, under Sections 363,
366, 376 IPC read with Section 3/4 of the
POCSO Act and cognizance was taken.
Thereafter, the trial proceeded against the
petitioner and co-accused. During trial on
15.11.2021, the statement of the PW-04,
(respondent
no.2)
the
victim
was
recorded. It was recorded that PW-04 had
affirmed her own statement given under
Section 164 of the Cr.P.C., but the
statement under Section 164 Cr.P.C. in its
original was lost. The order dated
02.12.2021 by the learned trial court has
recorded that for the loss of the statement
of under Section 164 Cr.P.C., and the
negligence of the employee concerned,
learned District Judge be informed. No
action was taken however, against such
irresponsible employee.

5. It has been argued that In the
examination-in-chief of the respondent
no.2, the respondent no.2 had placed
reliance upon her statement under Section
164 Cr.P.C. Therefore, the petitioner
through his counsel moved an application
on 08.01.2021 and sought time for crossexamination
as
in
the
absence
of
statement of PW-4 under Section 164
Cr.P.C.,
no
cross
examination
was
possible. Learned trial court has rejected
such application by an unreasoned order.
The order dated 08.12.2021 is exparte
and against the provision of Section 172
(2) and Section 294 of the Cr.P.C.

6. It has been argued that the
statement of the respondent no.2 under
Section 164 Cr.P.C. cannot be read as
2 All. Vajid Ali Vs. State of U.P. & Anr.
573
evidence because only a photo copy of the
same is available.

7. Under Section 172 (2) any criminal
court may send for police diary of a case
under enquiry or trial in such court, and
may use such diary, not as evidence in the
case, but to aid it in such enquiry or trial.

8. It has been stated by the learned
AGA for the State Ms. Shikha Sinha that
under Section 161 Cr.P.C. the Investigating
Officer records the statement of the
witnesses including the victim. Under
Section 164 of the Cr.P.C., the Magistrate
having jurisdiction in the case records any
confession or statement made to him in the
course of an investigation or at any time
afterwards, before commencement of the
enquiry or trial. The Magistrate explains to
the person making the statement that he is
not bound to make a confession, but if he
does so, it may be used as evidence against
him. However, Sub-Sections (2),(3) and (4)
of Section 164 of the Cr.P.C. are
inapplicable in the case before this Court as
this is not a question of a confession being
made, but it is the question of a statement
being made by the victim before the trial
court before the commencement of the
enquiry or trial. It has been pointed out that
such a statement is kept in sealed cover and
a copy of the same is given to the
Investigating Officer to tag it alongwith the
case
diary.
When
the
accused
are
summoned under Section 204 and they
appear before the trial court, the trial court
ensures that under Section 207 of the
Cr.P.C. they are given copies of all
documents relied upon by the Investigating
Officer in filing the charge sheet. A copy of
the case diary including statements under
Sections 161 and 164 Cr.P.C. are also
given and such copies being certified
copies in possession of the accused, can
always be used by the accused at the time
of cross-examination of the witnesses.

9. This Court has considered also the
various precedents of the Supreme Court. It
is a settled law that a Statement recorded
under section 164 is not a substantive piece
of evidence of the facts stated but can be
used to corroborate or contradict a witness.
In State of Delhi vs Shri Ram Lohia, AIR
1960 SC 490, it was held that Statements
recorded under Section 164 of the Code are
not substantive evidence in a case and
cannot
be made
use of
except
to
corroborate or contradict the witness. An
admission by a witness that a statement of
his was recorded under Section 164 of the
Code and that what he had stated there was
true would not make the entire statement
admissible much less that any part of it
could be used as substantive evidence in
the case.

10. In Utpal Das vs State Of West
Bengal, AIR 2010 SC 1894, it was held
that a Statement recorded under Section
164 Cr.P.C. can never be used as
substantive evidence of truth of the facts
but may be used for contradictions and
corroboration of a witness who made it.
The statement made under Section 164
Cr.P.C. can be used to cross examine the
maker of it and the result may be to show
that the evidence of the witness is false. It
can be used to impeach the credibility of
the prosecution witness.

11. In R. Shaji versus State of
Kerala 2013 (14) SCC 266, the Supreme
Court was considering the evidentiary
value of and the object of statements taken
section 161 and 164 Cr.P.C. and whether
the statements made thereunder can be
regarded as substantive evidence. The
appellant,
R
Shaji
had
argued
that
574 INDIAN LAW REPORTS ALLAHABAD SERIES
statements of certain witnesses were
recorded under section 164 Cr.P.C. before
the Magistrate. The said statements were
not put on record before the trial court and
the same were not marked. Thus the trial
would vitiate as the accused has been
denied an opportunity to contradict the
aforementioned
statements
of
the
witnesses, which were made on appearance
before the magistrate, which though are not
in the nature of substantive evidence, could
well
be
used
for
the
purpose
of
corroboration and contradiction. Denial of
such opportunity is against the requisites of
a fair trial,

The Supreme Court observed in
paragraph 25 thus:- "clause (iv) of Section
207 Cr.P.C. clearly provides that any
statement recorded under Section 164
Cr.P.C. shall be made available to the
accused along with all the other documents
that have been filed along with the
chargesheet. The appellant herein has
neither urged that the statements recorded
under section 164 Cr.P.C. were not a part
of such documents before the trial court,
nor was any issue raised by him at the time
of
cross-examination
of.....,
the
investigating officer. The same is a
question of fact. However, it appears from
the documents on record that such
documents, if the same were in fact a part
of the record, were not marked. They raised
this issue for the first time before the High
Court, and the High Court dealt with the
same observing:-

"reading of the judgement of the
court below shows that both sides referred
to
the
same
(the
statement
under
Section164 Cr.P.C.), in detail and the court
below has also referred to the same in its
judgement. It is well settled that the
statement under section 164 Cr.P.C. can be
used
both
for
corroboration
and
contradiction of the author of the statement
and thus, the Court did not find this ground
worth acceptance. Even otherwise, it
appears that statement recorded under
section 164 Cr.P.C. by the magistrate was
not in detail. No question had been put to
the witnesses whose statements have been
recorded nor an attempt had been made to
extract answers from them nor the
witnesses were asked by the learned
magistrate what they wanted to say and
they had no clue as to what they had to
speak. Therefore, they simply spoke what
came to their mind at that point of time
whether it was relevant or irrelevant. The
witnesses could not be deemed to carry so
much of wisdom to enable them to know
what are essential facts they need to state
before
the
learned
magistrate.
The
witnesses whose statements were recorded
before. the magistrate were simply asked,
"have you finished, you can go"

The court observed further in
paragraph 26 as follows:-

"evidence given in a court under
oath has a great sanctity, which is why the
same
is
called
substantive
evidence.
Statements under section 161 Cr.P.C. can
be
used
only
for
the
purpose
of
contradiction and statements under section
164 Cr.P.C. can be used for both
corroboration and contradiction. In a case
where magistrate has to perform the duty of
recording her statement under section 164
Cr.P.C., he is under an obligation to elicit
all information which the witness wishes to
disclose, as a witness who may be an
illiterate, rustic villager, will not be aware
of the purpose for which he has been
brought, and what he must disclose in a
statement under section 164 Cr.P.C..
Hence, the magistrate should ask the
2 All. Vajid Ali Vs. State of U.P. & Anr.
575
witness explanatory questions and obtain
all possible information in relation to the
said case."

Referring to the object of taking
statements under In 164, the Supreme
Court observed in paragraph 27 as follows:

"so far as the statement of
witnesses recorded under section 164 is
concerned, The object is twofold; in the
first phase, to deter the witness from
changing his stand by denying the contents
of his previously recorded statement; and
secondly, to tide over immunity from
prosecution by the witness under section
164. A proposition to the effect that if a
statement of a witness is recorded under
section 164, his evidence in court should be
discarded, is not at all warranted." (vide
Jogendra
Nahak
versus
State
of
Orissa..,2000(1) SCC 272, CCE versus
Duncan Agro Industries Ltd.2000 (7)SCC
53)

Para 28.. "Section 157 of the
Evidence Act makes it clear that a
statement recorded under Section 164
Cr.P.C. can be relied upon for the purpose
of corroborating statements made by
witnesses in the committal courtor even to
contradict the same. As the defence had no
opportunity to cross examine the witnesses
whose statements are recorded under
section 164 Cr.P.C., such statements cannot
be treated as substantive evidence."

Para 29 "during the investigation
the police Officer may sometimes feel that
it is expedient to record the statement of a
witnessUnder section 164 Cr.P.C.. This
usually happens when the witness to a
crime are clearly connected to the accused,
or where the accused is very influential,
and to which witnesses may be influenced.(
Vide Mamand versus Emperor.,AIR 1946
PC 45,Bhuboni Sahu versus R ..,AIR
1949PC 257 Ramcharan versus state of
UP..,AIR 1968 SC 1473 Dhanabal versus
state of Tamil Nadu. 1980(2) Scc 84)."

12. This Court is of the considered
opinion that a statement under Section 164
Cr.P.C. has no evidentiary value as such.
The proving or disproving of which, shall
weigh in the decision making of the learned
trial court. It is only used as an aid in case
during examination and cross-examination
of witness in the trial by the learned trial
court or by the accused.

13. This is evident from perusal of
Section 172 (2) of the Code itself as it says
that case diary is not to be used as evidence
in a case, but an aid to such enquiry or trial.

14. Learned counsel for the petitioner
has also pointed out Section 294 Cr.P.C.
Section 294 is being quoted herein below:-

"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 documents shall be
in such form as be prescribed by the State
Government.

(3) Where the genuineness of any
document is not disputed, such document
may be read in evidence in inquiry, trial or
other proceeding under this Code without
proof of the signature of the person to
whom it purports to be signed: Provided
576 INDIAN LAW REPORTS ALLAHABAD SERIES
that the Court may, in its discretion,
require such signature to be proved."

15. Ms. Shikha Sinha, Learned AGA
for the State has argued that a perusal of
Section 294 shows that it relates to
documentary evidence, which is filed by
either the prosecution or the accused in
support of their respective case. Where the
genuineness of any document is not
disputed, such document may be read in
evidence, in any enquiry, trial or otherwise,
proceedings, without proof of the signature
of the person to whom it purports to be
signed but the Court may in its discretion
require such signatures to be proved also.

16. Since the statement under Section
164 of the Cr.P.C. has only very limited
evidentiary value and is required only in
case, witnesses resile from such statement
during the examination-in-chief or the
cross-examination, it could not be treated
as coming under documentary evidence
under Section 294 of the Cr.P.C.

17. Learned counsel for the petitioner
in his rejoinder affidavit has submitted that
the Patna High Court in the Case of, 'Jai
Prakash Singh vs. State of Bihar and
Anr.' decided on 14.07.2006 reported in
2006 Criminal Law Journal 4245 has in a
similar case showed interference.

18. This Court has carefully perused
the judgement of the Patna High Court,
which has only a persuasive value and
cannot be said to be a binding precedent for
this Court; and finds that it relates to a case
where a photo copy of an injury report
being produced by the prosecution, the
original injury report was not tagged along
with the case diary. No notice was sent to
the Investigating Officer for producing the
original injury report. He, however, on his
own sent a letter to the Superintendent of
Police to the District stating that therein
that the original injury report was not
available in the record of the case at the
Police Station. The prosecution wanted to
prove the photocopy of the injury report
and learned trial
court allowed the
application
of
the
prosecution.
The
petitioner filed a petition under Section 482
Cr.P.C. challenging such order submitting
that a photo copy of the injury report
cannot be admitted as evidence. The Court
considered the question "whether or not the
photocopy of the injury report can be
treated as
secondary evidence?" and
admitted as such under the circumstances
of the case. The Patna High Court placed
reliance upon the case of Ashok Dulichand
vs. Madhavlal Dubey & Anr. 1975 (4)
SCC 664, where the Hon'ble Supreme
Court had explained the circumstances
under which a photocopy of a document
can be admitted as evidence. For such
admission as evidence, it has to be
explained
as
to
what
were
the
circumstances under which the photocopy
was prepared and who was in possession of
the original document at that time when a
photocopy was taken, and this should be
above suspicion. The Court considered the
circumstances of the particular case in Jay
Prakash Singh (Supra) and the fact that
the original injury report was not attached
with the case diary at the very first
instance. The prosecution was not able to
satisfy
the
court
the
facts
and
circumstances
regarding
when
the
photocopy of the original injury report was
prepared and under what circumstances.
Therefore,
the
Court
held
that
the
photocopy of the injury report was not
admissible in the evidence.

19. Learned counsel for the petitioner
has placed reliance upon Section 65 of the
2 All. Bheem Singh Vs. State of U.P.
577
Indian Evidence Act and Sub Clause (c)
thereof and says that secondary evidence
may be given of the existence, condition or
contents of a document only when the
original has been destroyed or lost or when
the party offering evidence of its contents
cannot, for any other reason not arising
from his own default or neglect, produce it
in reasonable time.

20. It has been submitted that the
original statement under Section 164
Cr.P.C. of the victim was not produced by
the prosecution and no reason for the same
was also given, therefore, the photocopy of
the 164 Cr.P.C. could not be treated as
Secondary Evidence and could not be made
admissible by the learned Trial Court. The
argument
regarding
admissibility
or
otherwise of statement under Section 164
Cr.P.C. of the victim can only be
considered at the time when the trial has
concluded and while considering evidence,
the Trial Court gives a finding that the
witness/victim
has
resiled
from
her
statement under Section 164 Cr.P.C. only
then its original would be required to verify
the contents thereof and to compare the
same
with
the
statement
made
in
Examination-in-Chief and the admission if
any made in the examination of such a
victim. Hence this argument is also rejected
as misconceived.

21. Having considered the arguments
made by the learned counsel for the
petitioner and learned AGA for the State
and also the evidentiary value of a
statement the Section 164 Cr.P.C., this
Court finds no good ground to show
interference in the order impugned dated
08.12.2021.

22. This Court finds from the perusal
of the order that the learned trial court has
recorded that the prosecution witness-04
(i.e. the victim) had been summoned and
was returned twice and she lived out of
station and a last opportunity had already
been given for cross-examination which
was not availed of by the accused. Such an
order cannot be said to be an unreasoned
order as argued by the learned counsel for
the petitioner.

23. Accordingly, this petition stands
rejected.
----------
(2022)02ILR A577
ORIGINAL JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 18.01.2022 &
20.01.2022

BEFORE

THE HON'BLE SANJAY KUMAR PACHORI, J.

Application U/S 482 Cr.P.C. No.22902 of 2021

Bheem Singh ...Applicant
Versus
State of U.P. ...Opposite Party

Counsel for the Applicant:
Sri Neeraj Pandey, Sri Om Prakash Singh
Sikarwar

Counsel for the Opposite Party:
A.G.A.

(A) Criminal Law-Application for recalling
witnesses-filed after delay of 4 years and
1 years after recording of examination in
chief
of
respective
witnesses-Trial
pending
for
defence
evidence
and
Applicant is in jail-Trial court rejecting
application u/s 311 Cr.P.C. affirmed. (E-9)

List of Cases cited:-

1. The State represented by the Deputy
Superintendent of Police Vs Tr. N. Seenivasagan,
2021 SCC Online SC 212