XXX v. State of Kerala

CRL.MC NO. 4863 OF 2021 1 ## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MRS. JUSTICE M.R.ANITHA** **FRIDAY, THE 5[TH] DAY OF NOVEMBER 2021 / 14TH KARTHIKA, 1943 CRL.MC NO. 4863 OF 2021** **(AGAINST THE ORDER OF THE JUDICIAL FIRST CLASS MAGISTRATE COURT-I,NEDUMANGAD IN A.NO.379/2021 IN RC 6/2020 IN CRIM NO.751/2019 OF ARYANADU POLICE STATION)** **PETITIONER/PETITIONER IN LOWER COURT:** **XXX xxx** **BY ADVS. M.RAJENDRAN NAIR M.SANTHI (K/868/2011)** **RESPONDENT:** **STATE OF KERALA REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, KOCHI. BY ADVS. SHRI.P.NARAYANAN, ADDL.PUBLIC PROSECUTOR SHRI.SAJJU.S., SENIOR G.P.** **PP – ADV.SRI.P. NARAYANAN - ADDL PP** **THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON 05.11.2021, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** CRL.MC NO. 4863 OF 2021 2 ## **ORDER** **Dated this the 5[th] day of November, 2021** This Crl.M.C has been filed against the order of the Judicial First Class Magistrate Court-I, Nedumangad in A.No.379/2021 in R.C.06/2020 in Crime No.751/219 of Aryanadu Police Station. 2. Petitioner is the complainant in Crime No.759/2019 of Aryanadu Police Station, which has been registered under Section 323 r/w 34 of IPC and Section 75 of the Juvenile Justice (Care and Protection of Children) Act 2015. The complaint is relating to the physical and mental assault of the minor son of the petitioner, aged 8 years, by the two accused who are the maternal uncle and aunt of the minor boy, while he was staying at the residence of the grandparents during December 2018 to July 2019. 3. During investigation, the statement of the minor son of the petitioner was recorded by the Judicial First Class Magistrate Court-II, Nedumangad on 23.9.2019. Later a refer CRL.MC NO. 4863 OF 2021 3 report was filed by the Investigating Officer on 18.3.2020 before the said Court, which was accepted by the court. Thereafter, the petitioner applied for a certified copy of the statement of the son recorded under Section 164 Cr.P.C., for ascertaining the correctness of the observations of the Investigating Officer in the refer report in order to file a protest complaint, if so required. By the impugned order, the prayer was rejected by the Magistrate. Aggrieved by the same, petitioner came up before this Court. 4. Notice was issued to the respondent. 5. Heard the learned counsel for the petitioner and also the Senior Government Pleader on behalf of the respondent State. 6. According to the learned Senior Government Pleader, the petitioner has no right to obtain copy of Section 164 Cr.P.C. 7. In **Miss.A v. State of U.P. [2020 (10) SCC 505]** the Hon'ble Apex Court considered the question whether an accused is entitled to get a copy of statement recorded under CRL.MC NO. 4863 OF 2021 4 Section 164 Cr.P.C. Para No.17, 18, 19 and 20 of the said decision are relevant in this context, which reads thus: _17. The scheme of the relevant provisions of Cr.P.C. shows that after the conclusion of the investigation, an appropriate report under Section 173 Cr.P.C. is to be filed by the police giving information as required by Section 173. in terms of Section 190 Cr.P.C., the Magistrate concerned may take cognizance of any offence inter alia upon a police report. At the stage of exercise of power under Section 190 Cr.P.C., as laid down by this Court in a number of decisions, the notable being the decision in Bhagwant Singh v. State, the Magistrate may deem fit that the matter requires further investigation on certain aspects/issues and may pass appropriate direction. It is only after taking of the cogninance and issuance of process that the accused is entitled, in terms of Section 207 and 208 Cr.P.C, to copies of the documents referred to in the said provisions._ _18. The filing of the charge-sheet by itself does not entitle and accused to copies of any of the relevant documents including statement under Section 164 Cr.P.C., unless the stages indicated above are undertaken._ CRL.MC NO. 4863 OF 2021 5 _19. Thus, merely because the charge-sheet was filed by the time the High Court had passed the order in the present matter, did not entitled Respondent 2 to a copy of the statement under Section 164 Cr.P.C._ _20. That apart, the reason that weighed with the High Court in placing reliance on the decision of the Division Bench of the High Court rendered in the year 2012 which was before the direction were passed by this Court in Shivanna was completely incorrect. As logical extension of the directions passed by this Court, no person is entitled to a copy of statement recorded under Section 164 Cr.P.C. till the appropriate orders are passed by the court after the charge-sheet is filed._ 8. In the present case, according to the learned counsel for the petitioner, the refer report was filed and accepted by the court and the case was closed. Now the petitioner comes forward with a prayer to issue certified copy of the statement of the victim under Section 164 Cr.P.C. When there is a categoric law laid down by the Appex Court, that no person under no circumstance is entitled to copies of statement recorded under Section 164 Cr.P.C. till appropriate orders are 6 CRL.MC NO. 4863 OF 2021 passed by the court after charge-sheet is filed and cogninace has been taken, it goes without saying that the victim is also precluded from getting a certified copy of the statement recorded under Section 164 Cr.P.C. It is to be noted that the position of the victim to get a copy is more in a disadvantageous position than that of the accused because it is his own statement. Hence his entitlement to get a copy is only at par with that of the accused or to some extent below that. **9.** Though the learned counsel for the petitioner, further draw my attention to **Unnikrishnan Nair v. State of Kerala [2013 (1) KLT 146],** wherein there was a direction by this Court to issue certified copy of Section 164 statement to the accused it is not discernible from the decision as to the stage in which it was applied for. Even otherwise in view of the dictum laid down by the apex court in **Miss.A v. State of U.P,** no further discussion would be necessary to find that the victim is not entitled to get certified copy of the statement recorded under Section 164 Cr.P.C. 10. In the present case, crime has already been referred CRL.MC NO. 4863 OF 2021 7 as false and the court has accepted the same. Hence, the petitioner has no right to get certified copy of Section 164 Cr.P.C. statement. The learned Senior Government Pleader would also contend that Section 164 Cr.P.C. statement is also not before the court at present. For the reasons stated above, I don't find any illegality or irregularity in the impugned order passed by the learned Magistrate. In the result, the Crl.M.C. is dismissed. Sd/- **M.R.ANITHA JUDGE** SMF CRL.MC NO. 4863 OF 2021 8 ## **APPENDIX OF CRL.MC 4863/2021** **PETITIONER'S ANNEXURE ANNEXURE A1 TRUE COPY OF REFER CHARGE IN CRIME NO.751/2019 OF ARYANADU POLICE STATION. ANNEXURE A2 CERTIFIED COPY OF ORDER OF J.F.M.C. I, NEDUMANGAD IN A. NO.379/2021 IN R.C. 06/2020 DATED 12.08.2021.**