ISHWAR THARANI Vs. STATE OF RAJASTHAN

JUDGEMENT

(1.) Heard learned counsel for the petitioner and also perused the impugned order dated 22.8.97 passed by Additional Sessions Judge No. 2. Ajmer whereby the trial Court had directed recalling of the witness Shri K.N. Gupta, Executive Magistrate who had been entrusted with the enquiry to ascertain the cause of death of 11 persons for the purpose of recording confessional statement of the accused under Sec. 164, Cr.RC. in the presence of the said Magistrate, Prima facie, I am of the view that once the accused has been sent to the judicial lockup he is supposed to be in protective custody of the court. Thereafter, if the accused is summoned by the Investigating Officer at the Police Station in connection with recording of his confession statement the said exercise is not permissible in law as it will tantamount to prejudicing his defence in the case which has been set- up the State against the accused in respect of alleged offence under Sections 304 and 304-A IPC. This is further evident from the impugned order dated 22.8.97 itself that at a very belated stage the photographs concerning the place of occurrence where the alleged offence is said to have been committed were summoned by the trial Court and the statement of the accused was recorded by the Executive Magistrate which are sought to be proved in evidence while recording his confessional statement under Sec. 164, Cr.PC. The said provision envisages that no confessional statement shall be recorded by a Magistrate without giving prior opportunity of hearing to the accused since otherwise it will tantamount to prejudicing his defence. I am further of the view that the proper stage for recording the statement of the accused was when he was lodged in police lockup for the commission of alleged offence under Sec. 304 and 304-A Penal Code and when the case was at the stage of investigation by the police.

(2.) I am further of the view that once the investigation has been finally completed and the accused has been sent to the judicial lockup, it obviously implies that he is no longer required for the purpose of investigation by the police. Thereafter, only the charge-sheet has to be filed against the accused for their trial in accordance with law. It was however, open to the prosecution to expedite the trial at the earliest. Moreover, a period of 13 years of protracted trial is already nearing process of completion and the matter is still pending at the evidence stage and now, it will not only prejudice the defence of the accused but will also further prolong the trial and no purpose would be served by recording his statement under Sec. 164, Crimial P.C.

(3.) As a result of the above discussion, the revision petition is allowed and disposed of. The impugned order dated 22.8.1997 passed by the Additional District & Sessions Judge No. 2, Ajmer in Sessions Case No. 31/97 (Old No. ST 50/90) is quashed and set-aside. Petition allowed.