Report Of The Chief Judicial … vs State Of Kerala on 31 March, 2009

       

  

  

 
 
  IN THE HIGH COURT OF KERALA AT ERNAKULAM

CRL.REF.No. 3 of 2008()


1. REPORT OF THE CHIEF JUDICIAL MAGISTRATE,
                      ...  Petitioner

                        Vs



1. STATE OF KERALA.
                       ...       Respondent

                For Petitioner  :SUO MOTU

                For Respondent  :PUBLIC PROSECUTOR

The Hon'ble MR. Justice M.N.KRISHNAN

 Dated :31/03/2009

 O R D E R
                    M.N. KRISHNAN, J.
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              Crl. Reference No. 3 OF 2008
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        Dated this the 31st day of March, 2009.

                        O R D E R

This reference has come up on account of the reference

made to the Court on an order passed by Chief Judicial

Magistrate Court, Ernakulam and the doubt expressed by the

Chief Judicial Magistrate Court, Manjeri. The brief facts

would reveal that the Deputy Superintendent of Police, C.B.I.

moved a petition before the Chief Judicial Magistrate Court,

Ernakulam to record the statement of one Narayanan u/s

164 Cr.P.C. The witness belong to Malappuram District. The

learned Chief Judicial Magistrate Court passed an order

stating that there are many lighter Courts in other Districts

and therefore he had taken a view that statement u/s 164

Cr.P.C. may be recorded by a learned Magistrate nominated

by the Chief Judicial Magistrate Court, Malappuram.

Thereafter the CBI moved the application before the Chief

Judicial Magistrate Court, Manjeri. The Chief Judicial

Magistrate Court had addressed a letter to this Court stating

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that the Chief Judicial Magistrate Court, Manjeri has no

territorial jurisdiction and therefore S.164 statement cannot

be recorded. He had also drawn the attention that as per

Rule 71 of the Criminal Rules of Practice S.164 Statement

can be recorded or authorised to be recorded by a Chief

Judicial Magistrate Court who has got territorial jurisdiction

for the same. In view of this conflicting stand he had

referred the matter for a decision of this Court and it has

come up on the judicial side.

2. The view of the learned Chief Judicial Magistrate

Court, Manjeri that he has no territorial jurisdiction to record

the statement may not be correct for the reason that S.164

very clearly states that any judicial Magistrate whether or not

he has jurisdiction in the case record any confession or

statement made to him in the course of investigation.

According to Rule 71 the request to record the statement of

witness should normally be made to the Chief Judicial

Magistrate or the Judicial First Class Magistrate or any

Magistrate whom the Chief Judicial Magistrate may nominate

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for the purpose. The stand taken by the Chief Judicial

Magistrate Court, Ernakulam also does not appear to be

correct. What he should have done is to direct one of his

subordinates to summon the concerned witness and examine

him. Therefore the matter requires interference.

3. I set aside the order passed by the Chief Judicial

Magistrate Court, Ernakulam and direct him to direct one of

his subordinates to summon the concerned witness and

examine him and record his statement u/s 164 as

contemplated by law. The Reference is answered accordingly.

M.N. KRISHNAN, JUDGE.

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