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Whether complainant can insist magistrate to record statement second time U/S 164 of CrPC?


Misc. Bench No. 3758 of 2015

Decided On: 06.05.2015

Nafeesa Vs.  State of U.P. and Ors.

Hon’ble Judges/Coram:

Ajai Lamba and Akhtar Husain Khan, JJ.

Citation: MANU/UP/1020/2015

1. The question raised by way of this petition is as to whether a witness, of his own has the right to approach a Magistrate to record his statement under Section 164 Cr.P.C.; and whether such Magistrate is under a legal obligation to record the statement of such witness under Section 164 Cr.P.C., when investigation in a criminal offence is going on? The petition seeks issuance of a writ in the nature of Mandamus, directing the investigating agency to record statement of the petitioner under Section 164 Cr.P.C. in open Court.

2. It has been pleaded in the petition that the petitioner lodged false F.I.R. on the basis of fabricated facts under pressure from her husband, bearing Case Crime No. 358 of 2014, under Sections 376 and 506 I.P.C., police station Laharpur, district Sitapur (First Information Report dated 9th September, 2014, Annexure-1). It has further been pleaded that the petitioner is an illiterate person with no knowledge of law. The petitioner did not know the accused.

3. In paras-9 to 11 of the petition, it has been pleaded that under threat of her husband and the investigating officer of the case, the petitioner gave her statement under Section 164 Cr.P.C. against Nasru, son of Buddha.

4. The petitioner moved application before the Additional Chief Judicial Magistrate-I, Sitapur for recording her statement a second time under Section 164 Cr.P.C., which has not been allowed. Appropriate directions be issued so that second statement of the prosecutrix is recorded under Section 164 Cr.P.C.

5. None appears for the petitioner.

6. We have taken note of the conceded position of the petitioner that she is author of F.I.R., Annexure-1, making allegation of commission of serious offence, like rape. Subsequently, during the course of investigation, on the initiation of the investigating officer, statement of the petitioner was recorded under Section 164 Cr.P.C. The petitioner supported the prosecution case, as contained in the F.I.R. version.

7. At a later juncture, however, the petitioner has developed the case that the earlier statement given to the police under Section 154 Cr.P.C. for registration of F.I.R., and given as a witness under Section 164 Cr.P.C. during the course of investigation, were false, under pressure and coercion of husband of the petitioner. It is in this backdrop of facts that the petitioner wants to give another statement under Section 164 Cr.P.C. in regard to the same incident, and not in addition, however, giving a different version and hue to the incident.

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8. It appears that the statement has not been recorded by the Magistrate because the investigating officer did not move an application for recording of such statement.

9. By virtue of this petition, the petitioner seeks a writ in the nature of Mandamus, directing the Magistrate and the investigating agency to record statement of the petitioner under Section 164 Cr.P.C.

10. Law in regard to recording of statement under Section 164, Cr.P.C. has been clarified by the Hon’ble Supreme Court of India in the case of Jogendra Nahak and others v. State of Orissa and others, MANU/SC/0441/1999 : (2000) 1 SCC 272 (paragraphs 19, 22, 23 and 24) : (AIR 1999 SC 2565). The following has been held:–

“19. In the scheme of the above provisions there is no set or stage at which a magistrate can take note of a stranger individual approaching him directly with a prayer that his statement may be recorded in connection with some occurrence involving a criminal offence. If a Magistrate is obliged to record the statements of all such persons who approach him the situation would become anomalous and every Magistrate’s court will be further crowded with a number of such intending witness brought up at the behest of accused persons.

22. If a Magistrate has power to record statement of any person under Section 164 of the Code, even without the investigating officer moving for it, then there is no good reason to limit the power to exceptional cases. We are unable to draw up a dividing line between witnesses whose statements are liable to be recorded by the Magistrate on being approached for that purpose and those not to be recorded. The contention that there may be instances when the investigating officer would be disinclined to record statements of willing witnesses and therefore such witnesses must have a remedy to have their version regarding a case put on record, is no answer to the question whether any intending witness can straightaway approach a Magistrate for recording his statement under Section 164 of the Code. Even for such witnesses provisions are available in law, e.g. the accused can cite them as defence witnesses during trial or the court can be requested to summon them under Section 311 of the Code. When such remedies are available to witnesses (who may be sidelined by the investigating officers) we do not find any special reason why the Magistrate should be burdened with the additional task of recording the statements of all and sundry who may knock at the door of the court with a request to record their statements under Section 164 of the Code.

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23. On the other hand, if the door is opened to such persons to get in and if the Magistrates are put under the obligation to record their statements, then too many persons sponsored by culprits might throng before the portals of the Magistrates courts for the purpose of creating record in advance for the purpose of helping the culprits. In the present case, one of the arguments advanced by accused for grant of bail to them was based on the statements of the four appellants recorded by the Magistrate under Section 164 of the Code. It is not part of the investigation to open up such a vista nor can such step be deemed necessary for the administration of justice.

24. Thus, on a consideration of various aspects, we are disinclined to interpret Section 164(1) of the Code as empowering a Magistrate to record the statement of a person unsponsored by the investigating agency. The High Court has rightly disallowed the statements of the four appellants to remain on record in this case. Of course, the said course will be without prejudice to their evidence being adduced during trial, if any of the parties requires it.”

11. Considering the law laid down by the Hon’ble Supreme Court of India, and extracted hereinabove, it becomes clear that a Magistrate cannot take note of an individual approaching him directly with a prayer that his/her statement may be recorded in connection with some occurrence involving a criminal offence. If liberty is given to anybody, and everybody, to approach a Magistrate for recording of statement under Section 164, Cr.P.C. in connection with an occurrence involving criminal offence, and if Magistrates are put under an obligation to record their statement, there is every likelihood that persons sponsored by accused/culprits might be asked to approach court of the Magistrate for creating record/evidence in defence with the purpose to help an accused/benefactor. If such a provision is made by way of giving liberty to a person unsponsored by the investigating agency to give statement under Section 164, Cr.P.C., entire investigation process would be derailed.

12. In the opinion of this Court, investigation is a searching enquiry for ascertaining facts; detailed or careful examination. Such Investigation is to be conducted by an investigating agency. In case persons individually are permitted to create “evidence in the process of investigation”, the process of investigation would be interfered.

13. It is the duty of the investigating agency to conduct investigation. When it is felt relevant and necessary, the investigating officer makes an application to the magistrate to record statement of a witness under Section 164, Cr.P.C. Such statement becomes a part of investigation record under Chapter XII of the Code of Criminal Procedure. This process would surely be interfered, if persons on their own claim a right to give statement under Section 164, Cr.P.C. Surely such a statement cannot be construed in pursuance of investigation by the concerned investigating agency. ‘Investigation’ has been defined under Section 2(h) as follows:

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“2(h) “investigation” includes all the proceedings under this Code for the collection of evidence conducted by a police officer or by any person (other than a Magistrate) who is authorised by a Magistrate in this behalf”.

14. Considering the above it becomes illusory and apparent that only a police officer or an investigator can sponsor a witness to a Magistrate for recording of statement under Section 164, Cr.P.C.

15. Considering the averments made in the petition, we are of the considered opinion that while exercising extraordinary writ jurisdiction, such direction, as sought in the petition, cannot be given. The investigating agency is required to proceed as per law. Ordinarily, a direction is not required to be given to the investigating agency to investigate a case in a particular manner. A witness can be produced before the Magistrate for recording his/her statement under Section 164, Cr.P.C. only by the investigating officer. Apparently, the petitioner has already given her statement once under Section 164, Cr.P.C., on the asking of the investigating agency.

16. From the pleadings in the petition, it has become evident that the petitioner concedes that she knowingly gave a false statement. Clearly, the petitioner can be proceeded against for giving a statement that is false to her knowledge and belief.

17. At this stage, in these proceedings, it cannot even be deduced whether the earlier version given by the petitioner was truthful or the case set up in this petition is truthful.

18. The petitioner would have the option to give statement in court when she is produced as a prosecution witness. It would be for the Trial Court to consider the statement (s) of the prosecutrix and conclude whether offence has been committed or not.

19. The question posed to the Court is answered in the negative, for the reasons recorded above.

20. Considering the law as noticed above, as also the peculiar facts and circumstances of the case, this Court would not like to interfere in the process of investigation by way of issuing direction to the magistrate to record statement of the petitioner under Section 164, Cr.P.C. Petition is dismissed.

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