V.D. Chaturvedi, J. - (1.) LEARNED counsel for the petitioner contends that in Case Crime No.197 of 2007, under Section 376 IPC the I.O. earlier submitted a charge sheet under Section 354 IPC but the Circle Officer by his order dated 8.8.2007 directed for reinvestigation hence, the I.O. reinvestigated the case, re-recorded the statement of the prosecutrix and submitted the subsequent charge sheet under Section 376 IPC. LEARNED counsel for the petitioner relied upon the judgement given by the another single bench of this Court in the case of Krishna Kumar Gupta Vs. State of U.P. reported in 2006(55) ACC 180.
(2.) THE earlier charge sheet dated 6.6.2007 for offence under Section 354 IPC did not reach the Court when the Circle Officer passed the order dated 8.8.2007. THE Court took the cognizance on the charge sheet dated 15.8.2007 and not on the charge sheet dated 6.6.2007. Thus, the Magistrate took the cognizance on a police report submitted under Section 173 (2) Cr.P.C. THE charge sheet consisted of the statements of the prosecutrix recorded times under Section 161 Cr.P.C. and also the statement of the prosecutrix recorded under Section 164 Cr.P.C. The provisions contained in Subsection (3) and Sub-section (8) of Section 173 Cr.P.C. empowers for further investigation. But on its basis it cannot be construed that the I.O. has no power to rerecord the statement of any witness. There is no bar for the I.O., in Cr.P.C., to re-record the statement of any witness if the circumstances so require. The re-examination of witnesses even by the trial Court is permitted under the Evidence Act. Therefore, there is nothing to hold that the I.O. may not re-record the statement of any witness. The record reveals that an objection was raised against the I.O. hence I.O. was changed and re-investigation was ordered. The circumstances, in which the I.O. was changed and the statements of the witnesses were re-recorded, were appropriate circumstances. There is nothing in the code of Criminal Procedure which may restrict the Investigating Officer to record the statement of a witness only once.
(3.) THE prosecutrix in her second statement has supported the F.I.R. and has given the explanation for concealing in her first statement the fact of rape upon her. She has supported the allegation of rape in her statement recorded under Section 164 Cr.P.C. also. A matter came before Hon'ble the Supreme Court in B.S.S. V.V. Vishwandadha Maharaj Vs. State of Andhra Pradesh reported in AIR 1999 S.C. 2332 wherein the Investigating Officer earlier submitted a final report. The Magistrate ordered on 2.8.1995 for "re-investigation of the case." Pursuant to the said order, the police re-investigated and filed a report on 15.9.1997 holding that the appellant has committed the offence under Section 420 of the I.P.C. The Magistrate took cognizance of the offence on the receipt of the said report and issued warrant of arrest. The Hon'ble Supreme Court found no illegality in the order nor in the reinvestigation made by the Investigating Officer. The case reported in AIR 1999 S.C. 2332 also fortifies the view that there is nothing wrong if the case is reinvestigated under Section 173(8) or under Section 173(3) Cr.P.C.;