1. A question of great importance has been raised, in this writ petition, made under Article 226 of the Constitution of India, the question being whether a person, who is acquainted with the facts of a case, which is under investigation by police, has any right to get his or her statement recorded, under Section 164 Cr.PC, by a Magistrate by filing a petition, in the Court of a Magistrate, seeking to get himself examined as a witness under Section 164 Cr.PC ?
2.The question posed above has arisen in the backdrop of the facts as indicated below:
(i)The petitioner, who claims to be an educated female person of the age of 21 years, has, according to the petitioner, voluntarily married, on 02.09.2010, one Md. Iftikhar Hussain, according to Islamic law and, thereafter, on 21.09.2010, their marriage was also registered under the Special Marriage Act, 1954, at Mangaldoi, in the district of Darrang. The petitioner claims that she, without giving any information to her parents, had gone out of her parental house, on 13.09 .2010, to her husband's house for the purpose of leading conjugal life there and she has accordingly started living with her husband at Garigaon, Guwahati. However, the petitioner came to learn that Baihata Chariali P.S. Case No.128/2010 has been registered, under Section 366 IPC, against her husband on the basis of a First Information Report lodged by her brother, Khargeswar Deka , the informant's allegation being that on 13.10.2010, at about 10 am, while his sister, (i.e., the petitioner), was going to Vidya Bharati College from her house at Singharpara, the accused, Md. Iftar Hussain, (i.e., the petitioner's present husband) had forcibly taken her away from Singharpara Chowk.
(ii).During the course of investigation, the petitioner, according to what the petitioner contends, has been projected as a victim of abduction, though she had married the accused aforementioned voluntarily and she has been living with him on her own accord. The petitioner, then, on 05.10.2010, filed a petition, in the Court of Sub-Divisional Judicial Magistrate, Rangia, seeking her statement to be recorded under Section 164 Cr . PC. The learned Magistrate has rejected her prayer by order, passed, in this regard, on 05.10.2010, on the ground, inter alia, that she might have been sponsored by the accused so as to paint himself as an innocent person.
4. Aggrieved by the order aforementioned rejecting her prayer that her statement be recorded in terms of Section 164 Cr.PC., the petitioner has, now, impugned the same by way of this writ petition and has sought for a direction to be issued to the learned Sub-Divisional Judicial Magistrate, Mangaldoi, to record her statement as a witness, under Section 164 Cr.PC, in connection with the case aforementioned.
5. I have heard Mr. NN Karmakar, learned counsel, for the petitioner, and Mr. G. Soren, learned Govt. Advocate, for the respondents.
6. Drawing attention of this Court to the provisions contained in Section 164 Cr.PC., particularly, Sub-Section (4) thereof, Mr. Karmakar contends that a Magistrate is competent, under the law, to record statement of any person as a witness under Section 164 Cr .PC and, in order to enable a Magistrate to record statement of a person as a witness, under Section 164 Cr .PC., it is not necessary that the investigating agency must seek recording of statement of such a person under Section 164. In other words, what Mr. Karmakar contends is that a Magistrate is competent to record statement of any person, during the course of investigation, if such a person opts to get himself examined as a witness, under Section 164 Cr.PC, on the ground that he (she) is acquainted with the facts of a case, which is under investigation. Such a prayer, according to Mr. Karmakar, can be made by such a person irrespective of the fact whether or not, the investigating agency seeks such a person's statement to be recorded, as a witness of fact, under Section 164 Cr.PC, or not.
7.According to Mr. Karmakar, the learned Magistrate has, erroneously and contrary to law, failed to exercise the power of recording statement of the petitioner as a witness under Section 164 Cr.PC. Mr. Karmakar contends that since the learned Magistrate has failed to exercise the jurisdiction vested in him by refusing to record the statement of the petitioner, this is a clear case of refusal to exercise jurisdiction and it is, therefore, a fit case, where this Court issues a writ directing the learned Magistrate to record statement of the petitioner under Section 164 Cr.PC.
8.In order to correctly appreciate the controversy involved in the present case, let us take note of the provisions of Sub-Section (1) of Section 164 (4) Cr.PC., which reads as under:
164. Recording of confessions and statements -
(1)Any Metropolitan Magistrate or Judicial Magistrate may, whether or not he has jurisdiction in the case, record any confession or statement made to him in the course of an investigation under this Chapter or under any other law for the time being in force, or at any time afterwards before the commencement of the inquiry or trial.
9.Coupled with the above, Section 164(4) reads as under:
164. Recording of confessions and statements -
(1)-
(2)-
(3)-
(4) Any such confession shall be recorded in the manner provided in Section 281 for recording the examination of an accused person and shall be signed by the person making the confession; and the Magistrate shall make a memorandum at the foot of such record to the following effect-
I have explained to (name) that he is not bound to make a confession and that, if he does so, any confession he may make may be used as evidence against him and I believe that this confession was voluntarily made. It was taken in my presence and hearing, and was read over to the person making it and admitted by him to be correct, and it contains a full and true account of the statement made by him.(Signed) A.B.,
Magistrate.
10. On a careful reading of the provisions contained in Sub-Sections (1) and (4) of Section 164 Cr.PC., it would clearly transpire that an accused is a definite person against whom there would an accusation. This apart, even a Magistrate can ascertain whether or not the person, who opts to get his confession recorded, is or is not an accused person. Such a confession can be used against the maker of the confession. If it is a confessional statement, prosecution can rely on it against the accused. Therefore, a confession may, perhaps, be recorded by a Magistrate on the accused opting to get his confession recorded. Such is, however, not the case of a person, who is not an accused, but claims to be acquainted with the facts of a case, for, such a person does not make any incriminating statement against himself if he claims to be a mere witness of fact. His statement, in a given case, may not be relied upon by the prosecution. In other words, prosecution has the option of not placing any reliance on such a person's statement as a witness of fact or as a person acquainted with the facts of a given case. Consequently, no such person can go to a Magistrate and require him to record a statement, which the person proposes to make, particularly, because, by making a statement, such a person may derail the entire investigation, whereas an investigation has to be, ordinarily, under the control of the investigating agency and, in rare cases, may be supervised by a Court of competent jurisdiction.
11.Coupled with the above, independence of investigating agency cannot be taken away by permitting a person, who claims to be a witness to get his statement recorded under Section 164 Cr.PC and thereby deflect the whole course of investigation. No doubt, Section 160 read with Section 161 Cr.PC empowers a police officer and casts, correspondingly, a duty upon him, to examine persons acquainted with the facts of a given case. Such an examination would, obviously, include interrogation of persons, who are acquainted with the facts and circumstances of a case, and use of such a statement at the trial. It is during the course of investigation, as envisaged by the Code of Criminal Procedure, that the provisions with regard to recording of confessional statement have been incorporated in Section 164. In the scheme of the Code relating to investigation and trial, there is no specific stage at which a Magistrate can take note of a person approaching him directly with an application to get his or her statement recorded in connection with any criminal offence by claiming that he is acquainted with the facts of the case. If such a power is acceded to a Magistrate, the possibility of witnesses being propped up by the accused to deflect attention from him cannot be ruled out.
12.It has been pointed out, on behalf of the petitioner, that though may not be, ordinarily, yet, in exceptional circumstances, the power to record statement of a person, under Section 164 Cr.PC, by the Magistrate on the witness opting to get his/her statement recorded, as a witness of fact, cannot be ruled out. If the power to record statement under Section 164 Cr.PC, at the option of a person, as a witness of fact is conceded to the Magistrate, it would be impossible to draw a firm line between the witness, whose statement deserves to be recorded by a Magistrate, when he approaches the Magistrate to get his statement recorded under Section 164 Cr.PC, and the case, where no such power shall be exercised. Either the Court permits, in each and every case, recording of statement by a Magistrate of any person as contended by Mr. Karmakar, whenever such a person opts to get his statement recorded as a witness of fact under Section 164 Cr.PC or such a power is not conceded to at all. This apart, a person, who is acquainted with the facts of a case, can be examined by the Court during trial by invoking its power under Section 311 Cr.PC. No wonder, therefore, that the Supreme Court, in Jogendra Nahak and others v. State of Orissa and others (AIR 1999 SC 2565), held, 24. On the other hand, if 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 Magistrate 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 the 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.
13.In fact, the contention that in exceptional circumstances, the power to record statement of a person (who moves a Magistrate to get his statement recorded as a witness of fact), shall be conceded to the Magistrate was raised earlier also in re CW Cases (AIR (1948) Mad 489). It was held, in re CW Cases (supra), that in order that statement of a witness may get recorded under Section 164 Cr.PC, there may be situation, where the police may not desire to get the statement of a witness recorded under Section 164 Cr.PC, and, in such circumstances, there is nothing in the law preventing the witness to go to the Magistrate and get his statement recorded. While so taking the view, the learned Judge did sound a note of caution by observing that such a situation would be rare inasmuch as a Magistrate has the discretion to record or not to the record such a statement. Similar views were expressed in State of Orissa v. Amitava Prasad Das (1979) 47 Cut Lt. 298. Pointing out that it would not be possible to draw a dividing line between a witness, whose statement deserves to be recorded by a Magistrate under Section 164 if the witness approaches the Magistrate and a case, where the witness's statement does not deserve to be recorded, the Supreme Court, in Jogendra Nahak (supra), pointed out as under:
23. 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 that those not 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 defense(sic) 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.
14. Having examined the scheme of the Code with special reference to the provisions of Section 164(1) Cr.PC, the Supreme Court concluded, at para 25, in Jogendra Nahak (supra), thus:
25. 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.
15.From what has been held, in Jogendra Nahak (supra), it becomes clear that a person, who may be acquainted with the facts of a given case, cannot, on his own, choose to apply to a Magistrate to get his/her statement recorded under Section 164 Cr.PC. Such a power may, however, be exercised by a Court, at the trial, by invoking its power under Section 311 Cr.PC provided that the trial has commenced.
16. It may also be borne in mind that the power under Section 311 Cr.PC can be exercised by the Court at any stage of the trial, which would, obviously, include a stage, when the adducing of evidence by the prosecution has not even started.
17. Because of what have been discussed and pointed out above, this Court does not find that the learned Sub-Divisional Judicial Magistrate, in the present case, committed any error of law in declining to record the statement of the petitioner under Section 164 Cr.PC. I, therefore, hold that the impugned order does not suffer from any infirmity, legal or factual. This writ petition is, therefore, not admitted and shall accordingly stand dismissed.
18.No order as to costs.