The Madurai Bench of the Madras High Court on Monday expressed its displeasure over the police including name of judges who record S 164 CrPC statements (Examination of witness) as a witness in the final report in such cases.
Justice N. Anand Venkatesh observed that the magistrate recording the statement under S 164 CrPC cannot be examined a a witness. Time and again police had been directed not to include judges as witnesses but the mistake was getting repeated, the court said.
The court was hearing the case of K. Sathish Kumar of Ramanathapuram, arrayed as accused in a case of kidnap and harassment of a minor girl under various sections of the Indian Penal Code and the POCSO Act.
He sought to transfer the case from the file of a special judge alleging that the judge had also recorded the witness statement in the case. Also, in the final report submitted by the police, the judge was named as a witness. He alleged that this would not result in a fair trial.
However, the court held that the judge or the magistrate is only a recording machine and merely records the statement. Nowhere in CrPC there is a bar on such magistrates from conducting trial in the case. Also, such magistrates will have better opportunity to assess the credibility of the witness statement, the court said while dismissing the petition.
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