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Court No. ­ 9

Case :­ MISC. BENCH No. ­ 16855 of 2018

Petitioner :­ Nazia
Respondent :­ State Of U.P. Thru. Prin Secy Home And Ors.
Counsel for Petitioner :­ Nutan Mishra,Santosh Kumar Bhatt
Counsel for Respondent :­ Govt. Advocate

                                                           ­:: A N D ::­

Case :­ MISC. BENCH No. ­ 16832 of 2018

Petitioner :­ Zeeshan Haider
Respondent :­ State Of U.P. Thru Prin Secy Home And Ors.
Counsel for Petitioner :­ Santosh Kumar Bhatt,Nutan Mishra
Counsel for Respondent :­ Govt. Advocate

Hon'ble Ajai Lamba,J.
Hon'ble Dinesh Kumar Singh,J.

1. This   order   shall   dispose   of   two   cases   viz.   Writ   Petition

No.16855 (MB) of 2018 titled 'Nazia v. State of U.P. and
others'   and   Writ   Petition   No.16832   (MB)   of   2018   titled
'Zeeshan Haider v. State of U.P. and others'. The petitions
are being disposed of vide a common order for the reason
that the petitioners in both the petitions seek the same relief
in   context   of   the   same   first   information   report,   the
petitioners being accused therein.

2. For   reference   to   record,   we   are   taking   up   Writ   Petition

No.16855 (MB) of 2018.

3. Order dated 13.08.2018 notices the gist of the issue raised
by the petitioners. The order reads as under:

" 1. The petition seeks issuance of a writ in the nature of certiorari quashing
impugned First Information Report No.202 of 2018, under Sections 328, 376,
354B, 452, 323, 506 Indian Penal Code, Police Station Talkatora, District
Lucknow.
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2. We have heard learned counsel for the petitioner and Shri S.P. Singh,
learned counsel for the State.

3. Short counter affidavit has been filed on behalf of the prosecuting agency in
Court which is taken on record. In the affidavit it has been stated that
incriminating evidence has been found against all the three accused. Charge-
sheet has been prepared.

It is apparent that charge-sheet has not been filed as yet.

4. Learned counsel for the petitioner has pointed out that the impugned first
information report has been registered in regard to an incident which is three
years old. In fact, even the date of incident and time of incident have not been
clarified by the complainant.

It has been highlighted that a victim of rape would certainly give such details.

5. On the second count it has been argued that it is not only improbable but
also impossible for a wife to support the actions of her husband in committing
offence of rape. There is not an iota of evidence to link the petitioner with the
act of intoxicating the victim or colluding in committing rape on the victim. The
investigation apparently has gone by the statement of the prosecutrix
recorded under Section 164 Cr.P.C. The contents of the statement, however
have not been investigated.

6. We have considered the contention. Indeed the relevant aspects of the

incident in question have not been investigated.

Even contents of statement recorded under Section 164 Cr.P.C. have to be

investigated.

7. Learned counsel has further pointed out that although there is no

incriminating evidence against Zeesan Haider, however Zeesan Haider has
been implicated for committing offence under Section 506 Indian Penal Code.
From the short counter affidavit being filed in Court, even the ingredients of
the said offence are not satisfied.

It has also been argued that even though Sadakat Husain had relations with
the victim, they would be consensual, as is demonstrated from the sequence
of events.

8. We find the investigation and the short counter affidavit filed on the basis of
the investigation to be wholly inadequate so far as the alleged offence is
concerned.
We hereby direct re-investigation in the matter.

9. The contents of statement under Section 164 Cr.P.C. have also to be

investigated for fair investigation.
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10. There are a large number of cases coming before us in which

complainant/prosecutrix have been indulging in falsely implicating accused or
whole family of the main accused. In such circumstances it becomes
imperative to verify whether the victim is telling the truth in regard to the role
played by each of the accused. The victim having given out her stand in her
statement under Section 164 Cr.P.C., it needs to be verified whether she is
telling the truth. The investigating agency or the Court cannot accept the
statement as such and proceed against the accused.

Proceedings against a person as accused has serious ramifications for his

personal life and his standing in the society. In law, no person should be
wrongly investigated, prosecuted or tried.

In such circumstances we are of the considered view that statement

recorded under Section 164 Cr.P.C. is also required to be investigated in the
interest of fair and effective investigation.

11. This issue cropped up before a Division Bench of this Court in which one
of us (Ajai Lamba, J.) was a party. The following has been held in
Nisharuddin vs. State of U.P. & Ors. - Writ Petition No.3402 (MB) of 2016
on 19.05.2016 (relevant portion):-

"17. Division Bench of this Court in Madhuri Devi v. Sate of U.P: Writ
Petition No. 7590 of 2015 decided on 21.8.2015 in regard to investigation,
has held as under (relevant paragraphs 12, 13, 14, 15, 39, 40, 42, 43 and
45):-

12. "Investigation" is a term defined under Section 2 (h) of the CrPC

in the following terms:

"(h) "investigation" includes all the proceedings under this Code for
the collection of evidence conducted by a police officer or by any
person (other than a Magistrate) who is authorised by a Magistrate in
this behalf;"

13. The dictionary meaning of investigation as per The New

Lexicon Webster's Dictionary of the English Language is "an
examination for the purpose of discovering information about
something".

14. As per Oxford Advanced Learner's Dictionary of Current

English, investigation is "an official examination of the facts about a
situation, crime, etc".

15. "Investigate" has been defined in Oxford Dictionary (supra) as,

"to carefully examine the facts of a situation, an event, a crime etc. to
find out the truth about it or how it happened."
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39. In the considered opinion of the court, although an accused would

have no right of hearing, however, a duty is cast on the investigating agency
to conduct fair and impartial investigation. If the investigator receives relevant
information in regard to the facts of a case under investigation, be it from the
complainant informant, a witness or even the accused, a duty is cast on the
said investigating officer to investigate that aspect. In case the investigation is
select and one sided, the truth cannot be unearthed. If facts or some
evidence/material is brought to the notice of the investigator, on consideration
of which it can be demonstrated that the accused is not connected with
commission of the crime, surely in such cases, the investigating agency would
be obliged to investigate that aspect, in the interest of fair play and purity of
administration of criminal justice. For this purpose, the information given by
the accused cannot be ignored on the analogy that he has no right to be
heard.

40. The judgement rendered by the Hon'ble Supreme Court in Ram Lal
Narang's case (supra) (emphasized portion), also indicates that when it
comes to the notice of the investigating agency that a person already accused
of an offence has good alibi, it would be a duty of that agency to investigate
the genuineness of the plea of alibi.

42. Also, it may happen that the name of an accused is given by the
complainant for mala fide reasons, however, at the point in time when the
offence was committed that person was abroad. In the circumstances,
manifest injustice would be caused in prosecuting that person. However, if the
investigating officer also considers the version of the accused in that context,
entries in the passport can be verified and a conclusion drawn that allegations
in the First Information Report to that extent are false. Similarly, a person
might not have anything to do in commission of an offence and he might have
plausible and acceptable material and evidence to demonstrate that fact,
surely it is the duty of the investigating officer to take those evidences/material
into account and only thereafter conclude investigation. Objective of
investigation is 'to find out the truth'. It is the bounden duty of the
investigating officer to find out as to how the incident/transaction/event
happened. The investigation is required to be conducted through a
scrupulous, unbiased, trustworthy and lawful manner.
(emphasised by us)

43. There might be another situation wherein only the accused might have
access to material or evidence relevant for investigation of a crime which
would elucidate, clarify and unfold the facts. Surely, investigation in regard to
such material would help the investigating agency to come to the right
conclusion. Thus, there can be no bar spelt out in law to the accused pointing
out the material which is relevant for the investigation of the crime. It would,
however, be solely for the investigating agency to draw a conclusion, on
completion of investigation.
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45. From the definition of ''investigation' provided under Section 2 (h) of

CrPC, it is evident that it includes all proceedings for the ''collection of
evidence'. The provision does not even envisage that only the version given
by the complainant/informant is to be inquired or investigated."

18. From the above, it is evident that the investigation is process of finding out
the truth. Investigation is in regard to an incident. There are a number of cases
reported wherein a complainant/informant after committing offence has
registered false criminal case against others. It therefore follows that statement
of a complainant/victim cannot be accepted as such, and is required to be
investigated whether he or she is telling the truth or not. Circumventing
circumstances might come on record which may indicate/establish that the
statement given by the prosecutrix is false and motivated under the influence of
some other persons. This is particularly so when scientific/forensic evidence
cannot be collected so as to prove commission of a particular crime.

19. When the allegations of commission of offence are only oral, veracity of
statements of witnesses assumes utmost importance. In case the oral
allegations cannot be confirmed by way of collection of physical evidence or
forensic or medical evidence, it becomes imperative for the prosecution and the
court to become cautious. In such circumstances, in the interest of substantial
justice and so as to avoid malacious prosecution, the statement of such victim is
required to be verified, whether she is stating the facts or not.

22. The Hon'ble Supreme Court of India in Ram Kishan Singh v. Harmit Kaur
[AIR 1972 SC 468], has held the following :-

8. A statement under Section 164 of the CrPC is not substantive evidence.

It can be used to corroborate the statement of a witness. It can be used to
contradict a witness..............."

24. In Ram Lakhan Sheo Charan v. State of UP [1991 Cri. L.J 2790], the
following has been held by Hon'ble Allahabad High Court:-

"12. The trial was held when the new Code of Criminal Procedure had
come into force. The wordings of Section 164 in the new and old code of
Criminal Procedure with little change are the same. As early as in Manik
Gazi v. Emperor, AIR 1942 Cal 36: (1942) 43 Cri LJ 277, a Division bench
of the Calcutta High Court had held that the statements under section 164
of the Code can be used only to corroborate or contradict the statement
made under section 145 and 157 of the Indian Evidence Act. In Brij
Bhushan Singh v. Emperor, AIR 1946 PC 38 and in Mamand v. Emperor
AIR 1946 PC 45: (1946) 47 Cri LJ 344, the Privy Council had observed
that the statement under section 164 of the Code cannot be used as
substantive evidence and which can only be used to contradict and
corroborate the statement of a witness given in the Court. Similar
observation as made in the two cases below, were made by the Privy
Council, in Bhuboni Sahu v. King, AIR 1949 PC 257: (1949) Cri LJ 872,
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and in Bhagi v. Crown, 1950 Cri LJ 1004: [AIR 37 1950 HP 35]. It was also
held by a single bench of the Himachal Pradesh Judicial Commissioner's
court that statement under section 164 of the code cannot be used as a
substantive piece of evidence. In State v. Hotey Khan, 1960 ALJ 642:
(1960 Cri LJ 1167). A division bench of this court had also observed that
statements under section 164 of the Code cannot be used as substantive
evidence.

13. The above catena of cases go to show that where the witness do
not support the prosecution story in the court, then their statements
under section 164 of the Code cannot be used as substantive piece of
evidence. In this case, the learned Judge had erred in using Exts. Ka-15
and Ka-16 as substantive piece of evidence"

27. On perusal and consideration of the law above extracted, it becomes

evident that statement of a witness recorded under Section 164 Cr. P.C is not
substantive evidence. It can be used to corroborate the statement of the
witness. It can be used to contradict the witness. Such statement would either
be elevated to the status of evidence under Section 32 of the Evidence Act if
the maker of the statement subsequently dies or it would remain within the
realm of what it was originally. Therefore, in case after recording of statement
under Section 164 Cr. P.C, the witness dies before his or her statement can be
taken as a prosecution witness in the course of trial, Section 32 of the Indian
Evidence Act would be attracted.

28. It has been clarified in the above referred judgments that where a witness
does not support the prosecution story in the court, then only the statement
recorded under Section 164 Cr. P.C cannot be used as substantive piece of
evidence to record conviction of the accused. The basis of laying down this law
is that the statement of a witness is recorded in the absence of the accused. At
the time of giving statement by the witness, the accused has not had the
occasion to cross examine the witness. Thus, so as to convert a statement
under Section 164 Cr. P.C into substantive piece of evidence, it should be duly
tendered before the trial court and then the witness should be produced by the
prosecution for cross examination.

29. Having considered the purpose and relevance of statement of the witness
recorded under Section 164 of the Code of Criminal Procedure in the course of
investigation, we must provide and clarify that such a statement is required to
be verified by the investigating officer. Such a statement cannot be considered
as complete investigation. A large number of cases are coming before us in
which a highly exaggerated picture is painted by the witness which might ex
facie seem absurd or inherently improbable. While such a witness might
involve more than one person in commission of the offences, on verifying the
contents of the statement, it might be found that some of the named accused
were elsewhere and nowhere close to the place of incident to reiterate the law
laid down in Madhuri Devi's case (supra), the incident is required to be
investigated. It cannot be ruled out that a statement given by the witness under
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Section 161 Cr.P.C or 164 Cr. P.C might not be truthful and therefore it follows
that in the interest of fair and effective investigation, the same is required to be
confirmed and verified, particularly when there is reason to suspect the
truthfulness of the statement. There might be cases where absence (or
presence) of medical and physical evidence reflect suspicion on the statement
of the witness. There might be other cases where there is animus between the
parties indicating the urge to falsely implicate the accused. There might be
other cases where the case at issue is in counter blast. Therefore, such
statement recorded under Section 164 Cr. P.C Cannot be accepted at its face
value as the final truth and might require verification through investigation."

12. The contents of statement recorded under Section 164 Cr.P.C. be

thoroughly investigated in all its relevant aspects.

Role, if any, of Nazia as also Zeesan Haider in the incident be investigated.

13. We hereby direct Superintendent of Police, (West) Lucknow to ensure that

re-investigation is conducted by a competent officer, under the day-to-day
supervision of Superintendent of Police, (West) Lucknow.

14. List on 04.10.2018.

15. In both the cases, the petitioners be not taken in custody till the next date
of listing.

16. Let a copy of this order be placed in the file of Writ Petition No.16832

(M/B) of 2018 also. "

4. Short   counter­affidavit   has   been   filed   on   behalf   of   the

investigating   agency   by   Sri   Vikash   Chandra   Tripathi,
Superintendent of Police, West, Lucknow. In the affidavit it has
been   stated   that   re­investigation   was   undertaken.   During   the
course of investigation, it has been found that victim of offence
had given contradictory statements under Section 161 Cr.P.C.,
and   Section   164   Cr.P.C.   The   statements   were   found   not
consistent with the F.I.R. version. Some of the allegations are
found to be baseless. No evidence has been found to indicate
commission of offence under Section 376D of the Indian Penal
Code, therefore, the said offence was converted into Section 376
of   the   Indian   Penal   Code.   Accordingly,   investigation   was
conducted.
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5. It has been stated that no incriminating evidence has been found
against the petitioners in both the cases. Names of the accused
have been deleted from the array of the accused.

6. From   the   above,   it   is   evident   that   cause­of­action   does   not

survive. Both the petitions are disposed of as infructuous.

7. Let a copy of this order be placed in the  file of Writ Petition
No.16832 (MB) of 2018.

Order Date :­ 4.10.2018
GK Sinha