CHENNAI: The Madras High Court has held that the statement of a witness/victim can be recorded under Section 164 CrPC only at the instance of the Investigating Officer (IO) of the case and it is not necessary for him to approach the CMM/CJM with an application for nominating a magistrate for doing it.
A specially constituted bench of Chief Justice Indira Banerjee and Justice P N Prakash gave the directives, when a batch of petitions raising the issues were placed before it, on Friday.
The bench said that a magistrate, whether he has got jurisdiction or not to inquire into or try the case, can record the statement of a witness/victim under this section on the request of the IO of the case.
The presiding officer of a Special Court, which has been empowered to take cognisance of an offence without there being a need for committal, may also record such statements on the request of the IO. After recording the statements, the judge/magistrate shall take two photocopies of them, under his/her direct supervision and certify them as true copies.
He/she should furnish one copy to the IO free of cost with a specific direction to use it only for purpose of investigation and not to make its contents public, until the investigation is over and the final report filed. The other copy shall be kept in a sealed cover in the safe custody of the judge/magistrate. If the magistrate who had recorded the 164 CrPC statement is not the jurisdictional magistrate, he shall send the original statement to the jurisdictional court, either through a special messenger or by registered post with acknowledgment due. If he himself is the jurisdictional magistrate, he shall keep the original of the statement in the case records.
The issues raised before the bench are whether the police are entitled to be furnished with copies of the statements of the witnesses and confession of the accused recorded under Section 164 CrPC, the dying declaration and the test identification parade report of the magistrate.
As regards confession statement of the accused, the bench said the IO should make an application before the CMM/CJM for nominating a magistrate, other than the jurisdictional magistrate. After recording the statement, the magistrate shall observe the same formalities as mentioned above.
After recording the dying declaration, the bench said the magistrate shall follow the same formalities. For test identification parade report, the bench said an application for the same shall be made under Section 54-A of the Code by the IO, to the court having jurisdiction. On such application, the court may direct the person so arrested to subject himself to identification.
The court shall make a request to the CMM/CJM of the district to nominate a magistrate, other than the jurisdictional magistrate, to conduct the parade. Upon receipt of such request, the CMM/CJM shall immediately pass orders nominating a magistrate. The magistrate so nominated shall conduct the parade and after preparing the report, he shall adopt the same formalities, the bench added,
The bench also directed the State government to construct special rooms for conducting the identification parades in all prisons in the State within six months. Such rooms should have one side view glass partition separating those lined up for the parade on the one hand and the witness and magistrate on the other.
The witness and the magistrate should not be visible to those who are lined up, but, the suspect and the dummies should be visible clearly to the witness and the magistrate. The enclosure in which the suspect and the dummies are lined up shall be well illumined and should also have an ante room for them to change their attire. The bench directed the Registrar-General to circulate a copy of this order to all judicial officers in the State.