Khurshid Alam vs State

Kanwaljit Singh Ahluwalia, J.—The present revisional petition has been filed u/s 482 of the Code of Criminal Procedure to assail the order dated 2nd November, 2012 passed by the Court of Chief Judicial Magistrate at Port Blair whereby signatures of the witness Shri K. Ram Das appended upon the statements made by him were exhibited. During the examination of the witness, a preliminary objection was raised by the Counsel for the accused that the statement of the witness being u/s 161 of the Code of Criminal Procedure is hit by section 162 of the Code of Criminal Procedure and, therefore, the signatures upon such statements are not admissible in evidence.

The Magistrate had dismissed the submission by observing as under:

Perused the petition. Heard the both at length. Gone through the provision of law. Gone through the document of signature in question. I find that the documents is a statement of the witness with regard to the seizure, and it is fact that the statement made u/s 161, Cr.P.C. not evidence u/s 74 of the Evidence Act, but that is the evidentiary value of the statement and the signature thereon cannot be decided at this stage. As per finding of the Supreme Court in different cases it is pointed out that if any objection raised during the exhibiting any documents the Court may endorse with objection and the admissibility of that evidence be decided at the time of argument and judgment for safe the time of the Court.

So, I am of the view that the signature may be exhibited with objection and after evidence and completion of evidence and argument the admissibility of the evidence with regard to this documents be decided. So the prayer of the accused is hereby rejected as per above statement.

Before passing the above order, the Court below had noted the contention of the learned Assistant Public Prosecutor that the statement has not been recorded by the Investigating Officer for the purpose of section 161 of Cr.P.C. but was recorded for another purpose i.e., in connection with the seizure.

The arguments advanced by the learned Public Prosecutor before the Court below and the reason propounded by the Trial Court pale into insignificance if the scheme of the trial arising out of the police case and complaint case are taken into consideration. Chapter XII of the Code of Criminal Procedure is regarding information to the police and their power to investigate. After FIR is registered u/s 154 of the Cr.P.C., the investigation of cognizable case commences u/s 156 of the Cr.P.C. Thereafter, procedure for investigation has been enumerated in section 157. u/s 161, statement of witness are to be recorded by the Police Officer. Section 162 states that statement made by any person, to a Police Officer in course of an investigation if reduced into writing shall not be signed by the witness. A remarkable distinguish is that a Police Officer who record a statement of the witness u/s 161, Cr.P.C. shall not obtain signatures of the witness.

Here in the present case, the petitioner accused is being tried in a complaint filed under the provisions of the Wild Life (Protection) Act, 1972. Section 55 of the Wild Life (Protection) Act, 1972 reads as under:

Cognizance of offences.--No Court shall take cognizance of any offence against this Act except on the complaint of any person other than:

(a) the Director of Wild Life Preservation or any other officer authorized in this behalf by the Central Government; or

(b) the Chief Wild Life Warden, or any other officer authorized in this behalf by the State Government; or

(c) any person who has given notice of not less than sixty days, in the manner prescribed, of the alleged offence and of his intention to make a complaint to the Central Government of the State Government or the office authorized as aforesaid.

It is an admitted fact that in the present case, Assistant Wild Life Warden-cum-Range Officer, Garacharma had filed a complaint against the accused under sections 39, 40, 44, 48, 49-B, 50 and 51 of Wild Life (Protection) Act, 1972. Thus, in case of the complaint filed procedure prescribed in Chapter XV of the Cr.P.C. has to be followed. Process is to be issued by following procedure prescribed u/s 200. As per proviso section 200 of the Cr.P.C., the Court may dispense the examination of the Assistant Wild Life Warder-cum-Rang Officer being a public servant and issue a process on the basis of the complaint. However, seizure memo and other statements recorded by the complainant are not statements u/s 161 of Cr.P.C. Therefore, the arguments raised that such statements are hit by section 162 is not tenable. Custom Officer, Excise Officer, Income Tax Officer and Narcotic Control Board, who institute complaint, prepare panchnama and record statement of the witness. Such statements recorded for all intent and purpose are the previous statements made by a witness. Therefore, as per procedure prescribed under the Indian Evidence Act, they are not a substantive piece of evidence and being previous statement can be used by the accused to confront the witness. But these are not the statement recorded by the police officer, thus reliance placed upon u/s 162 of the Cr.P.C. is misconceived. For the reason entirely different which are not being stated in the impugned order, I uphold the order passed by the Court below and dismiss the present revisional application as no interference is warranted.