Bail application under section 439 of cr.p.c.
Kunal Sarkar
(Querist) 21 June 2013
This query is : Resolved
A police case was registered under section 376/511 of IPC against Rabi who is abscond from the date of incident.
The said offence was committed in a Hotel and at that time two more friends are present in the Hotel along with the victim and accused person. Police recorded statement of the victim u/sec. 164 of cr.p.c. in which the victim stated the name of her two friend.
During investigation police arrested the Manager of the Hotel.
I filed a bail petition before session judge u/section 439 of cr.p.c. and accordingly police produce case diary before court.
The session judge after perusal of case diary and my submission directed the IO to record statements u/s 164 of cr.p.c. of two friends of the victim and posted bail application after 10 days.
Now my question is that,
1. whether the session judge can direct the IO to record statements to any particular witness under section 164 cr.pc., if so under what provision.
2. whether its amounts to interference in the investigation and influence/directing the Investigating agency to investigate the case in any particular manner.
3. whether such type of directing can given by the session judge to consider a bail petition.
4.whether this order can be challenge in the High Court and can i filed separate bail petition in the High Court on this ground.
5. Whether such order of the session judge is illegal.
6. what relief i give to my client.
A Truthseeker
(Expert) 22 June 2013
OM
Please see
Sat Paul vs. Delhi Administration
AIR1976SC294:1976SCC(CR)160:(1976)1SCC727:1976CrLJ295:
"the courts are not competent to use the statements of the witnesses recorded by the Police during investigation for seeking assurance for the prosecution story............."
again in AIR1974SC1146 it is held
"the police has the statutory right to investigate into the circumstances of any alleged cognizable offence without authority from a Magistrate and this statutory power of the police to investigate can not be interfered with by the exercise of power u/s 439 crpc or under the inherent power of the court u/s 561-A of crpc,1898."
so your case may be challenged in the Hon'ble Court.
Raj Kumar Makkad
(Expert) 23 June 2013
There are many judgments which caste a duty upon the trial court to watch the investigation of the case as and when required. There are ample powers with Sessions Judge in directing the IO as has been done in the given case.
