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In Re: C.W. Casse - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtChennai
Decided On
Judge
Reported in1949CriLJ28
AppellantIn Re: C.W. Casse
Cases ReferredMahomed Casim v. Thumby Sahib A.I.R.
Excerpt:
- - 3. in the present case there was no material before the magistrate from which it could be inferred what the nature of the offences complained was against the alleged suspect mr. but such a thing will be very exceptional, as there is always a discretion in the magistrate to refuse to record the statement......particular case the accused and his pleader took certain witnesses to a magistrate empowered to record statements under section 164, criminal p. c, and that after the statements were taken, the record of the proceedings was given to the witnesses them, selves or more probably to the pleader. the learned judge was of opinion that such a procedure was wholly illegal and that under sub-section (2) of section 164 such statement shall be forwarded by the recording magistrate to the magistrate by whom the case is to be enquired into or tried. from this note appended to the judgment of the learned judge, it is argued that it was competent foe ah accused or his pleader to take a witness before a magistrate empowered to record a statement under section 164, criminal p. c, and get the statement.....
Judgment:
ORDER

Govinda Menon, J.

1. M. P. no. 166 of 1948 in the Court of the Chief Presidency Magistrate, Madras, was an application by one Mr. C. W. Casse, praying that his statement should be recorded under Section 164, Criminal P. C, in order that it may be used for the purpose of the enquiry or trial which might arise out of Crime No. 2 of 1947 investigated by the Special Police Establishment, New Delhi. It does not appear from the proceedings that there was any affidavit filed in support of the petition before the learned Chief Presidency Magistrate; but from the order of the lower Court it appears that the Court was informed that one Mr. Thompson had been arrested at Bangalore under instructions from the Delhi special police in regard to certain offences said to have been committed by him at Cawnpore. Mr. Casse requested the Magistrate to record his statement under Section 164, Criminal P. C, for the reason that the statement would be very important evidence in connection with the proposed enquiry or trial.

2. The learned Magistrate dismissed that application holding that there was nothing in the application before him indicating as to whether the matter was under investigation or whether an enquiry or trial had not commenced. The petitioner offered to go into the witness box to give evidence with respect to the pending investigation, but that request was refused on the ground that the petitioner was not competent to speak to the factum or to the stage of the investigation and whether the enquiry or trial had not commenced before a Magistrate having 'jurisdiction to try the said offence. Moreover the lower Court was of opinion that Section 164, Criminal P. C, was not intended to enable the accused to secure in advance evidence which he might lead in defence in case he should be tried later on. Another reason for dismissing the application was that to permit such a procedure would be an abuse of the intendment of the section. Mr. Govind Swaminathan raised the same contention before me as in the lower Court and urged that the reasons given by the learned Chief Presidency Magistrate are unacceptable. According to the learned Counsel, on the plain words of the section all that the Magistrate need satisfy himself is about the existence of an investigation under Chap. XIV, Criminal P. C, and also that such investigation had not become fructified in an enquiry or trial. I am inclined to hold that it is not obligatory upon the Magistrate to record the statement of an individual simply because an application is made to him that such a statement may be necessary in an enquiry or trial that may develop as a result of the investigation. It is not all investigations that culminate in an enquiry or trial. A large percentage of investigations end in the abandonment or non-initiation of criminal proceedings. Therefore any person who feels that he has useful information to give in connection with the investigation will first of all have to contact the investigating police officers and impart that information to such investigating staff.

3. In the present case there was no material before the Magistrate from which it could be inferred what the nature of the offences complained was against the alleged suspect Mr. Thompson. Even if Mr. Casse is in a position to speak about the existence or pendency of an investigation, in the very nature of things be will not be competent to speak to the nature and details of the complaint which is being investigated by the police unless Mr. Casse himself was the complainant. That the statement proposed to be given by him was intended to be used on behalf of the defence is sufficient by itself, to indicate that Mr. Casse cannot be the complainant. Therefore it is impossible to predicate with any degree of certainty the correctness of the information likely to be given by Mr. Casse.

4. Mr. Swaminathan invited my attention to a decision in Mahomed Casim v. Thumby Sahib A.I.R. 1940 Hang. 53 ; (1940) Cri. L. J. 392, where there is a note by Mosely J. appended to the judgment indicating that in that particular case the accused and his pleader took certain witnesses to a Magistrate empowered to record statements under Section 164, Criminal P. C, and that after the statements were taken, the record of the proceedings was given to the witnesses them, selves or more probably to the pleader. The learned Judge was of opinion that such a procedure was wholly illegal and that under Sub-section (2) of Section 164 such statement shall be forwarded by the recording Magistrate to the Magistrate by whom the case is to be enquired into or tried. From this note appended to the judgment of the learned Judge, it is argued that it was competent foe ah accused or his pleader to take a witness before a Magistrate empowered to record a statement under Section 164, Criminal P. C, and get the statement of the witness re-corded by the Magistrate even though the investigating police have not taken the initiative in requesting the Magistrate to record the statement or confession. It seems to me that on a true and correct interpretation of the section, the argument of Mr. Swaminathan is right. It is not necessary that the Magistrate should be moved by the police in order that he might record a statement. There may be instances where the police may not desire to have recorded, the statement of a witness for some reason or other. In such a case, there is nothing preventing the witness to go to the Magistrate and request him to record the statement and if a Magistrate records his statement and transmits the same to the Court where the enquiry or the trial is to go on, there is nothing wrong in his action. But such a thing will be very exceptional, as there is always a discretion in the Magistrate to refuse to record the statement. Ordinarily, when a police officer requests the Magistrate to record the statement of a witness on oath under Section 164, Criminal P. C., such a request will not be refused by the Magistrate. But when a private party seeks to invoke the powers of a Magistrate under B. 164, Criminal P. C, the Magistrate has got a very wide discretion in acting or refusing to act. In this case I do not think that the learned Magistrate has unwisely refused to exercise the discretion.

5. I do not think that the object to be achieved, viz., that of using the statement to corroborate the evidence of the deponent to be given in future at the enquiry, can legally be permitted. In order that a previous statement of a witness can be used to corroborate the evidence given at an enquiry or trial, the necessary requisites of Section 157, Evidence Act, have to be complied with. The former statement relating to the same fact must have been given at or about the time when the fact took place or before any authority legally competent to investigate the fact. It is not suggested that the Chief Presidency Magistrate is legally competent to investigate some offences alleged to have occurred in Cawnpore. Nor is it stated that the statement proposed to be given under Section 164, Criminal P. C, would satisfy the condition that it was given at or about the time when the fact took place. In these circumstances I am not prepared to hold that the lower Court has acted illegally or with material irregularity in the exercise of its discretion. The criminal revision case is dismissed.


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