IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE 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)

W I T H

Criminal Appeal Nos.1669-1673 of 2008) (Arising out of S.L.P. (Crl.) Nos.5029-5033 of 2005)

A N D

Criminal Appeal No.1674 of 2008 (Arising out of S.L.P. (Crl.) No.2529 of 2006)

O  R  D  E  R

Delay condoned.

Leave granted.

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.

Another petition 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.

Therefore, the impugned orders are liable to be set aside.

...4/-

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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 parties.

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.

......................J.       [B.N. AGRAWAL]

......................J.       [G.S. SINGHVI]

......................J.       [AFTAB ALAM]

New Delhi, October 21, 2008.