M.A.A.KHAN,J. - (1.) HEARD .
(2.) ON 19.4.1997 Suresh Chand Sharma, the informant, lodged a report with the P/s. Hindaun City, regarding the commission of rape by Vrindavan, applicant No. 2 on his wife Smt. Kusumlata. Against Madan Mohan, applicant No. 1. it was alleged that when Suresh went to protest against the mis -behaviour of Vrindavan, applicant No. 2, against his wife, he was beaten by Madan Mohan and Vrindavan, applicant Nos. 1 and 2. The police registered a case for offences Under Sections 323, 451 and 376/511 IPC. After investigation the police came to the conclusion that no offence, punishable Under Section 376 r.w. Section 511 IPC was committed in the case. A police report for offence Under Sections 451 and 323 IPC was accordingly submitted before the A.C.J.M., Hindaun. It appeals that after the learned Magistrate had received the police report, he directed the police to get Smt. Kusumlata examined Under Section 164 Cr. P.C. Smt. Kusumlata was accordingly examined on 12.6.1997 Under Section 164 Cr. P.C. though the chargesheet appears to have been submitted before the court on 13.5.1997. It further appears that the applicants had been admitted to bail for offences Under Section 451/323 IPC by the police or by the learned Magistrate before recording the statement of Smt. Kusumlata Under Section 164 Cr. P.C. The applicants, apprehending their arrest in connection with the non -bailable offence of attempt to commit rape punishable Under Section 376/511 IPC, applied for anticipatory bail before the Addl. Sessions Judge, Hindaun City, who by his order dated 28.6.1997 declined to accept their prayer mainly on the ground that the offences reported by the police to have been committed in the case, were bailable and, therefore, an application Under Section 438 Cr. P.C. was not maintainable. The applicants further appear to have again applied for bail Under Section 438 Cr. P.C. on the basis of their apprehension of being arrested on the charge of commission of offence Under Section 376/511 IPC. The learned Addl. Sessions Judge again declined to pass appropriate order in favour of the applicants and dismissed their application on 2.8.1997. That is how the applicants have approached this Court for appropriate relief in the matter. It was not disputed on behalf of the prosecution that a police report for offences Under Sections 323, 451 IPC had been submitted to the Addl. Chief Judicial Magistrate on 31.5.1997 and thereafter the learned Magistrate had, may be on the request of the Investigating Officer or on his own, directed that the statement of Smt. Kusum Lata be recorded Under Section 164 Cr. P.C. and then her statement was accordingly recorded on 12.6.1992. The learned Public Prosecutor did not dispute the position that before directing that the statement of Smt. Kusum Lata be recorded Under Section 164 the learned Magistrate had already taken cognizance of offences Under Sections 323/451 IPC on the police report. If that was so, the procedure adopted by the learned Magistrate was not legally correct. Once the learned Magistrate had taken cognizance of the case and commenced the inquiry or trial he could not have directed the recording of the statement of a witness Under Section 164 Cr. P.C. Section 164 Cr. P.C. clearly says that any Metropolitan Magistrate or Judicial Magistrate may, whether or not he has jurisdiction in the case, record any confession or statement made to him in the course of an investigation under Chapter XII or under any other law being in force, or at any time afterwards before the commencement of the inquiry or trial. Inquiry commences after the Magistrate has taken cognizance of an offence in a case. Cognizance of offence is deemed to have been taken by the Magistrate when he has applied his mind to the police report and the material submitted therewith and has either mentioned such a fact in some specific order made by him in that behalf or has proceeded with the hearing of the case and taken further steps in the direction of holding inquiry or trial in the case. When he has already taken cognizance of offence in a case on police report and proceeded to hold inquiry or trial he may himself record the statement of the witness in the course of such inquiry or trial leaving no occasion for recording the statement of the witness Under Section 164 Cr. P.C. Investigation into an offence by the police is a stage coming to natural end if not kept pending Under Section 173(8) Cr. P.C., with the submission of the police report Under Section 173(2). Inquiry and trial by the Magistrate commence thereafter. The functions of judiciary and the police in the administration of criminal justice are in fact supplementary and not overlapping. Where the function of the police ends the function of courts in the adjudication of criminal cases commences. It is true that the addition of Sub -section (B) to Section 173 does not preclude further investigation by it but that does not mean that the added provision of Sub -section (B) empower the Magistrate to order further investigation by the police. The statement of a witness recorded Under Section 164 Cr. P.C. does not go to make a new, further or additional evidence in the case as such evidence has already been obtained by examining him Under Section 161. Statement of a witness recorded either Under Section 161 or 164 Cr.PC do not go to make substantive evidence at the trial. That may be used for contradiction purposes only.
(3.) IN the instant case, it seems to me, the learned Magistrate had directed the recording of the statement of Smt. Kusum Lata to know or satisfy himself whether the accusation made against the applications fell within the purview of the offence punishable by court of Sessions. But since he had, undisputedly, already taken cognizance of offence Under Sections 323, 451 IPC on the police report submitted before him on 31.5.97 and had commenced inquiry or trial he could not have permitted or directed the investigating officer to collect evidence to the above effect by getting the witness, Smt. Kusum Lata, examined Under Section 164 Cr.P.C. That stage was already over on 31.5.1997 and was not available on 12.6.1997. The inquiry or trail had already commenced. The course open to the learned Magistrate was that as provided by Section 323 Cr. P.C. which says that if, in any inquiry into an offence or trial before a Magistrate, it appears to him at any stage of the proceedings before signing judgment that the case is one which ought to be tried by the Court of Sessions, he shall commit it to that court as per relevant provisions in that behalf. The learned Magistrate, in case it had appeared to him that the case was in one which ought to be tried by the Court of Sessions, must have disclosed his mind to that effect upon the parties and proceeded as per Section 323 Cr. P.C. for the commitment of the case to the court of Sessions, if the material on his record at that stage of the proceedings prima -facie disclosed the commission of the offence punishable Under Section 376/511 IPC.;