MM court dismissed the discharge petition saying that one LW (Law Witness) stated (CrPC-161 statement) before the police that accused did offence at place-A. Hence court at place-A has jurisdiction and dismissed the discharge petition.
Whereas the LW stated without disclosing the information that comply with the section 211, 212 and 213 of CrPC. Also as per police the statement is dropped from charge sheet and is not part of the charge sheet, but court upheld the dropped allegation.
Now accused has no information abou the alleged statement and as per law CrPC-161 statement is not evidence as per section 162 of CrPC and the LW statement is not supported by the complainant and other LWs of the case and is dropped from the charge sheet after investigation and police is not relied on the alleged statement that is not part of the police report and the court also never informed to the accused that the alleged statements by the LWs are considered to take the cognizance to try the case.
Taking the cognizance based on the CrPC-161 is not maintainable based on the Full Bench decision of the Culcata High court: Ref: Calcutta High Court A.K. Roy vs State Of West Bengal on 4 October, 1961 Equivalent citations: AIR 1962 Cal 135, 66 CWN 697 Author: S Sen, Bench: S Sen, N Sen, Bhattacharya, D Dasgupta, A Roy in which the Hon’ble High Court held that:
“Magistrate is empowered to take the cognizance of the alleged offence on the alleged allegations present in the charge sheet/police report submitted under section 173(2) and further held (Para no: 109 of A1) that Magistrate can not take the cognizance based on the CrPC-161 statement alone collected by the police but may look into the CrPC-161 statements in support of the alleged allegations present in the charge sheet/police report.”