Mukhtiar Singh Vs.
State of U.P. & ANR. Etc.  INSC 1794 (21 October 2008)
JURISDICTION CRIMINAL APPEAL NOS.1665-1668 OF 2008 (Arising out of S.L.P.
(Crl.) Nos.2741-2744 of 2004) Mukhtiar Singh ...Appellant(s) Versus State of
Uttar Pradesh & Anr. Etc. ...Respondent(s) WITH
Criminal Appeal Nos.1669-1673 of 2008) (Arising out of S.L.P. (Crl.)
Nos.5029-5033 of 2005) AND Criminal Appeal No.1674 of 2008 (Arising out of
S.L.P. (Crl.) No.2529 of 2006) O R D E R Delay condoned.
Heard learned counsel
appearing on behalf of the parties.
By the impugned
orders, High Court allowed petitions under Section 482 of the Code of Criminal
Procedure, 1973, [hereinafter referred to as "the Code"] filed by
accused Rakesh Kumar, Sahib Singh, Ram Lal Verma, Bobby and Puttu Lal Prabhakar
and directed that the statement of the victim Mamta @ Rekha recorded under
Section 164 of the Code shall be deemed to be non-est. The High Court also
quashed the charge-sheet submitted by CB-CID in Crime Case No.458 of 2002 [C.B.
No.282 of 2003] under Sections 363, 366 and 376 of the Indian Penal Code,
1860, [hereinafter referred to as "I.P.C."].
...2/- -2- The short
facts are that, upon a written report submitted at the concerned police station
by petitioner Mukhtiar Singh, a First Information Report was drawn up on 16th
November, 2002, for offences under Sections under Sections 363, 366 and 376
I.P.C. Sahib Singh, Parkash and Rameshwar were named as accused in the First
Information Report. As per the prosecution, the victim Mamta was recovered on
25th December, 2002, from the possession of Bauna and Vijender. Her statement
was recorded under Section 161 of the Code in which she named Ramlal, Bhura and
Bobby, sons of Ramlal, Bauna and Vijender, apart from the persons named in the
First Information Report. During the pendency of investigation, a petition was
filed by the informant on 10th January, 2003, for recording the statement of
Mamta under Section 164 of the Code. When the learned Magistrate called for the
report from the police on the said petition, the latter appears to have
submitted charge-sheet on 13th January, 2003 and, on the same day, a report was
submitted to the court that it is not necessary to record the statement of the
victim under Section 164 of the code because charge-sheet has already been
submitted. Thereupon, the court rejected the petition filed by the informant.
The learned Magistrate took cognizance on 3rd February, 2003, and ordered issue
of summons to the accused.
In the meanwhile, a
petition was filed by the informant under Section 482 of the code before the
High Court complaining therein that, in spite of request made by him before the
Station House Officer and Circle Officer, the statement of the victim has not
been recorded under Section 164 of the Code. Of course, it was not stated in
the petition that such a prayer was made before the learned Magistrate and the
same has been rejected on the basis of ...3/- -3- report submitted by the
police with the assertion that charge-sheet has already been filed. The High
Court allowed the petition filed by the informant and directed the learned
Magistrate to record the statement of Mamta under Section 164 of the Code.
This order was
complied with on 17th February, 2003.
filed by the informant for transfer of the case to CB-CID was also allowed by
the learned Single Judge on 27th March, 2003, and after completing the
investigation, CB-CID filed charge-sheet dated 28th October, 2003.
The accused persons
challenged that charge-sheet by filing petitions under Section 482 of the Code.
By the impugned orders, the learned Single Judge allowed all the petitions,
quashed the charge-sheet submitted by CB-CID and gave directions to which
reference has been made hereinabove.
We have heard learned
counsel for the parties.
In our view, the
learned Magistrate should have ignored the factum of submission of charge-sheet
by the police on 13th January, 2003, and issued direction for recording the
statement of the victim Mamta under Section 164 of the Code. He should not have
allowed the investigating officer to scuttle the application made by the
informant on 10th January, 2003, by delaying submission of report and then
filing charge-sheet and making a statement that, in that view of the matter, it
is not necessary to record the statement of the victim. This aspect of the
matter has been totally ignored by the High Court while granting prayer made on
behalf of the contesting respondents in the petitions filed by them under
Section 482 of the Code.
impugned orders are liable to be set aside.
...4/- -4- The
criminal appeals are, accordingly, allowed and the impugned orders are set
aside. Now, the learned Magistrate shall consider the statement of victim Mamta
recorded under Section 164 of the Code on 17th February, 2003, pursuant to the
direction of the High Court together with charge-sheet submitted by CB-CID and
proceed in accordance with law after giving opportunity of hearing to the
While disposing of
the appeals, it is made clear that we should not be misunderstood to have
expressed any opinion on the question as to whether after submission of
charge-sheet, a Magistrate can give direction for recording statement under
Section 164 of the Code as the said question is of academic importance so far
as these appeals are concerned.