The Supreme Court has held that although the statements recorded by the police under Section 161 Cr.P.C./Section 180 BNSS cannot be relied on at trial, they can be considered at the cognizance stage.

“Section 161 CrPC statements, obviously, cannot be relied on at the trial, but definitely could be gone into at the time of cognizance, since that is the material available before the Court, as produced by the Police along with the final report. That the Court is entitled to take cognizance despite a closure report by the police, requires no reiteration.”, observed a bench of Justice JB Pardiwala and Justice K Vinod Chandran, while setting aside the Patna High Court's decision to interfere with the cognizance order of the magistrate, relying on the statements recorded under Section 161 Cr.P.C.

Briefly put, the Appellant, being a father of the deceased who died of drowning, alleged that the Respondent No.2 played an active role in her son's death. Compelling circumstantial evidence also existed, along with witnesses who saw the Respondent No.2, the accused, running away from the spot.

The FIR was lodged, and the investigation carried out resulted in a final report making out no case (closure report), which the Appellant protested. The protest petition was renumbered as a complaint case.

Aggrieved by the magistrate's order refusing to take cognizance after filing of a closure report, the Appellant moved to the Sessions Court in a revision, which had ultimately directed the magistrate to consider the final report afresh.

The magistrate, subsequently upon remand, took cognizance of the offence under Section 302 and 201 of the IPC, which was challenged before the High Court.

Aggrieved by the High Court's decision to quash the cognizance order of the magistrate, the Appellant moved to the Supreme Court.

Setting aside the impugned order, the Court observed that the High Court had casually brushed aside the magistrate's order of taking cognizance, despite compelling circumstances being brought on record, including the Section 161 statements, to make a prima facie view that there was material to enable a trial.

Further, the Court noticed that the High Court had ignored the settled law that the filing of a closure report brings no impediment for the court to take cognizance.

“Suffice it to notice that the revisional order was in detail and specifically dealt with the statements recorded under Section 161 of the Code of Criminal Procedure and took a prima facie view that there was material to enable a trial. The decisions with respect to cognizance despite a closure report, were also noticed by the Additional Sessions Judge, all of which were casually brushed aside by the High Court. The Additional Sessions Judge found very compelling circumstances, on a prima facie consideration and the revisional order directed consideration of the final report afresh by the learned Magistrate.”, the Court observed.

“We find absolutely no reason to interfere with the cognizance taken on the facts and circumstances as coming forth. We make it very clear that the view taken by the Additional Sessions Judge or by the learned Magistrate when taking cognizance or by us, in affirming the cognizance taken, shall not, in any manner, regulate or govern the trial.”, the Court said.

As a result, the plea was allowed, restoring the magistrate's cognizance order. The 2nd respondent was directed to appear before the learned Magistrate, who shall carry out the committal proceedings in accordance with law.

Appearance:

For Petitioner(s) : Mr. Sparsh Chaudhary, Adv. Ms. Akansha- 4029, AOR Mr. Naman Raj Singh, Adv. Dr. Amardeep Gaur, Adv.

For Respondent(s) : Mr. Amit Chaudhary, Additional Standing Counsel, Adv. Ms. Aagam Kaur- 3639, AOR Ms. Nisha Bhaskar, Adv. Mr. Kartikey, Adv. Ms. Shrijeta Pratik, Adv. Mr. Anuj Prakaash, Adv. Mr. Niraj Dubey, Adv. Ms. Sohini Bardhan, Adv. Mr. Pradum Kumar, Adv.