1. Heard Sri Harsh Sharma holding brief of Shri. Akhilesh Kumar Pandey, learned counsel for the applicants and Sri Ankit Srivastava, learned A.G.A. for the State.
2. The present 482 Cr.P.C. application has been filed to quash the order dated 27.07.2018 passed by the Addl. Sessions Judge, Court No. 5, Aligarh by which that court has rejected the application filed by the applicant no. 1 to record her statement under Section 164 Cr.P.C. in Criminal Misc. Application No. 313 of 2018 that had been filed with reference to Case Crime No. 399 of 2018, under Section- 306 IPC, Police Station- Quarsi, District- Aligarh.
3. In short, an FIR was lodged on 23.03.2018 alleging commission of offence under Section 306 IPC. During the police investigation in that case, a statement of the applicant no. 1, is claimed to have been recorded by the Investigating Officer on 29.04.2018, under Section 161 Cr.P.C. Such statement has given rise to the dispute in the present case. The applicant no. 1 alleges her statement had been wrongly recorded by the police. On 23.6.2018, her mother filed an affidavit before the S.S.P., Aligarh making that allegation and basically sought to dilute the prosecution case, at this stage. No action appears to have taken on such application and the investigation remained pending. On 5.7.2018 the applicants then filed an application before the learned Court below to record the statement of applicant no. 1 under Section 164 Cr.P.C. Admittedly, the applicant had not been sponsored by the investigating agency and while no order had been passed on the aforesaid application, on 07.07.2018, the investigating agency submitted a charge sheet under Section 173(8) Cr.P.C. whereon cognizance was taken by the learned Court below on the same date without first passing any order on the application filed by the present applicants - under Section 164 Cr.P.C. Subsequently, on 27.07.2018, the impugned order has been passed by which the learned Court below has rejected the application filed by the applicant no. 1 to record her statement under section 164 Cr.P.C.
4. While rejecting that application, the learned Court below has observed since it had already taken cognizance on 07.07.2018 and therefore there remained no occasion to record a statement under Section 164 Cr.P.C.
5. Learned counsel for the applicants submits that the learned Court below has completely erred in rejecting the application to record the statement under Section 164 Cr.P.C. He would submit that the language of Section 164(1) is clear. A statement under Section 164 Cr.P.C. may be recorded at any time during investigation or at any time afterwards but before the commencement of the inquiry or trial. Insofar as other than taking cognizance no other step had been taken by the learned Magistrate as may establish that the inquiry or the trial had commenced, it remained open to the learned Court below to record the statement of the applicant no. 1 under Section 164 Cr.P.C.
6. Second, since the applicant is not a stranger but a person who had been questioned by the investigating agency, her statement should have been recorded under section 164 Cr.P.C. In this regard, he further submitted that in the facts of the present case, the police report had been submitted under Section 173(8) Cr.P.C. and not under Section 173(2) Cr.P.C. He submits that on the own showing of the investigating agency, the investigation was pending. Therefore, undeniably the stage for recording statement under Section 164 Cr.P.C. did survive.
7. As to the need for her statement to be recorded under Section 164 Cr.P.C., it has been submitted, since the police had not conducted a fair and proper investigation inasmuch as the statement of the applicant no. 1 who is a key witness had been recorded in a manner so as to aid the accused persons, the applicant no. 1 was within her rights to approach the learned Court below to get her statement recorded under Section 164 Cr.P.C.
8. Learned counsel for the applicants has relied on a decision of the Jharkhand High Court in the case of Reshma Khan Vs. State of Jharkhand passed in Criminal Revision No. 999 of 2014 decided on 20.01.2015, wherein it has been observed as below:
"4. .......On plain reading of the provisions it is apparent that the Magistrate has the power to record the statement of a witness under Section 164 (5) Cr.P.C. but the judicial discretion has to be exercised on consideration of the facts of the case.
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7. In the instant case the petitioner is the informant of the case. She has categorically stated that her L.T.I. was taken by the police when she was admitted in the hospital and she never made the statement which was converted by the police as her fard bayaan. She has stated that she approached the police to take her statement when she learnt that a person against whom she had no grievance has been made an accused by the police after getting her LTI on a blank paper. She even wrote to the Superintendent of Police in this matter but the investigating officer did not record her statement.
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9. It is well settled that when the case is under investigation by the investigating agency, the court's power is restricted in interfering with the investigation. However, as is abundantly clear from the emergent factual scenario the petitioner being the informant had approached the court for recording her statement being distressed and aggrieved with the attitude of the investigating agency.
In such circumstances the Magistrate should have exercised his judicial discretion under the provision of Section 164 Cr.P.C. before rejecting the prayer of the petitioner."
(emphasis supplied)
9. Last, it has been submitted that no prejudice may be caused, if such statement was to be recorded in support of the prosecution case and not in the aid of defence. Here great emphasis was laid on the fact that the applicant no. 1 is not a stranger to the criminal case inasmuch as her statement had been recorded by the police itself and that therefore she had not rushed to the learned Magistrate to set up a false defence.
10. Sri Ankit Srivastava, learned AGA has opposed the motion. He would submit that once the investigation had been concluded and cognizance of the offence had been taken, there did not survive any stage for the statement under Section 164 Cr.P.C. to be recorded.
11. As to the right claimed by the applicants, he submits, no person, in whatever capacity, can approach the learned Magistrate to get his statement recorded under Section 164 Cr.P.C., unless he is sponsored by the investigating agency, except a person under investigation, who may approach the Magistrate to get his confessional statement recorded or a person covered by provision of section 164(5A) Cr.P.C. Even in the case of a confessional statement, it has been submitted that a police report would necessarily have to be first called by the learned Magistrate before a such statement may be recorded under Section 164 Cr.P.C.
12. As to the statement of any other person who may want his statement to be recorded under Section 164 Cr.P.C., it has been submitted, he must be sponsored by the investigating agency. Reliance has been placed on a decision of the Supreme Court in the case of Jogendra Nahak & Others Vs. State of Orissa & Others reported in 2000 (1) SCC 272 wherein it has been observed as below:
"2. A strange motion has been made before the High Court of Orissa by four persons who are strangers to a criminal case for direction to a magistrate to record their statements under Section 164 of the CrPC (for short 'the Code').
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20. In re C.W. Cases (supra) Govinda Menon, J. of the Madras High Court (as he then was) expressed the view that:
It is not necessary that the Magistrate should be moved by the police in order that he might record a statement. There may be instances where the police may not desire to have recorded, the statement of a witness for some reason or other. In such a case, there is nothing preventing the witness to go to the Magistrate and request him to record the statement and if a Magistrate records his statement and transmits the same to the court where the enquiry or the trial is to go on, there is nothing wrong in his action.
21. Nevertheless learned Single Judge sounded a note of caution like this:
But such a thing will be very exceptional, as there is always a discretion in the Magistrate to refuse to record the statement. Ordinarily, when a police officer requests the Magistrate to record the statement, of a witness on oath under Section 161 Cr.P.C., such a request will not be refused by the Magistrate. But when a private party seeks to invoke the powers of a Magistrate under Section 164, Cr.P.C. the Magistrate has got a very wide discretion in acting or refusing to act.
22. The same approach was made by Single Judges in State of Orissa v. A.P. Das (supra) and in Kunjukutty v. State of Kerala (supra).
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 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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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."
(emphasis supplied)
13. Further, reliance has been placed on a decision of this Court in the case of Nafeesa Vs. State of U.P. and Others reported in 2015 (5) ADJ 648 wherein following the decision in the case of Jogendra Nahak & Others Vs. State of Orissa & Others (supra), it was observed as under:
"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?
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12. 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.
13. 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.
15. 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."
(emphasis supplied)
14. Other than the confessional statement by an accused person another category of cases where a statement may be recorded under section 164 Cr.P.C. is of persons covered under sub-section 5A of that section. Clearly, such is not the case before us.
15. Having considered the arguments so advanced by learned counsel for the parties, it is first to be noted that a Full Bench of this Court in the case of Raja Ram Vs. State reported in AIR 1966 All 192 had the occasion to consider the following question:
"Whether a confession recorded by a Magistrate under Section 164 of the Code of Criminal Procedure after the police had completed its investigation and submitted a charge-sheet, but before the Magisterial enquiry has commenced, is inadmissible in evidence."
16. The concurrent opinion of each of the three judges (comprising the full bench), on the above question was in the negative, and it was held that a statement under Section 164 Cr.P.C. may be recorded after the conclusion of investigation upto before the commencement of the inquiry or the trial. The third opinion expressed by Justice D.P. Uniyal specifically dealt with the point in time when an inquiry may be treated to have commenced. That question was answered in the following words:
"24. Under the provisions of the Code the inquiry under Chapter XVIII commences when the Magistrate takes cognisance of the offence within the meaning of Section 190 (1). After the police had submitted a report under Section 173 cognisance of the offence could be taken by the Magistrate under clause (b) of Subsection (1) of Section 190. In the circumstances of this case the Magistrate would have taken cognisance of the offence when he applied his mind to the contents of the police report for the purpose of proceeding in the manner indicated in Section 207-A of Chapter XVIII of the Code.
25. Sub-section (3) of Section 207-A gives an indication as to the point of time when the inquiry may be said to commence. That sub-section reads thus: "At the commencement of the inquiry the Magistrate shall when the accused appears or is brought before him, satisfy himself that the documents referred to in Section 173 have been furnished to the accused, and if he finds that the accused has not been furnished with such documents or any of them he shall cause the same to be so furnished."
Sub-section (4) and the subsequent sub-sections provide how the Magistrate should proceed to record evidence produced on behalf of the prosecution and empower the Magistrate to summon such evidence as he may consider necessary, and to call upon the accused if necessary to make a statement in regard to the accusation against him. It would thus appear that the inquiry commences only after the Magistrate is satisfied that the documents referred to in Section 173 have been supplied to the accused and when the Magistrate proceeds to take the evidence in support of the prosecution case."
(emphasis supplied)
17. That being the correct principle, in the present case, it has not been examined by the learned court below whether the documents as required by Section 173(4) Cr.P.C. had been supplied to the accused person on any date prior to 27.07.2018. Thus, at present it cannot be said whether the inquiry had or had not commenced. To that extent, the reasoning given by the learned Court below is incomplete or inadequate. The correct principle to be applied by the learned Court below would have to be one as had been laid down in the full bench of this Court, noted above. However, a decision on that point may not be necessary in the facts of the present case, in view of what follows herein.
18. In so far as it is the admitted case of the applicant no. 1 that she was not seeking to get her confessional statement recorded, then, irrespective of the stage of the proceedings, her statement could not have been recorded under section 164 Cr.P.C. since she had not been sponsored by the investigating agency. Therefore, the pre-condition to record such statement was not satisfied. In this regard the decision of the Supreme Court, in the case of Jogendra Nahak & Others Vs. State of Orissa & Others (supra) appears to categorically and unequivocally prescribe - only a person sponsored by the investing agency can approach the Magistrate to get his statement recorded under Section 164 Cr.P.C. The only exception that exists to that inferred principle is the confessional statement of an accused person under investigation.
19. The submission that the said principle would apply only against strangers to the accusation who may rush to the learned Magistrate only to create false or frivolous evidence in support of the accused persons and thus seek to scuttle the investigation is unfounded. From a plain reading of the decision, in Jogendra Nahak & Others Vs. State of Orissa & Others (supra), the clear principle of law laid down does not create or allow for such an exception to arise or exist. To that extent the principle laid down by the Supreme Court appears to be absolute. It was followed by another coordinate Bench of this Court in the case of Nafeesa Vs. State of U.P. and Others (supra) where the informant approached the learned Magistrate on second occasion to record her statement under Section 164 Cr.P.C., though such statement had also been recorded earlier.
20. Then, the Supreme Court had the occasion to consider its decision in Jogendra Nahak & Others Vs. State of Orissa & Others (supra), in the case of Mahabir Singh Vs. State of Haryana reported in 2001 (7) SCC 148. The latter was a case where the learned Magistrate had proceeded to record a statement under Section 164 Cr.P.C., alleged to be a confessional statement, without prior verification of the identity of that person. In that context, it was observed as below:
"20. The sub-section makes it clear that the power of the Magistrate to record any confession or statement made to him could be exercised only in the course of investigation under Chapter XII of the Code. The section is intended to take care of confessional as well as non-confessional statements. Confession could be made only by one who is either an accused or suspected to be an accused of a crime. Sub-sections (2), (3) and (4) are intended to cover confessions alone, dehors non-confessional statements whereas Sub-section (5) is intended to cover such statements. A three Judge Bench of this Court in Jogendra Nahak v. State of Orissa, 1999 CriLJ 3976 has held that so far as statements (other than confession) are concerned they cannot be recorded by a Magistrate unless the person (who makes such statement) was produced or sponsored by investigating officer. But the Bench has distinguished that aspect from the confession recording for which the following observations have been specifically made (SCC p. 275, para 12) "12. There can be no doubt that a confession of the accused can be recorded by a Magistrate. An accused is a definite person against whom there would be an accusation and the Magistrate can ascertain whether he is in fact an accused person. Such a confession can be used against the maker thereof. If it is a confessional statement, the prosecution has to rely on (SIC)against the accused.
21. We have no doubt that an accused person can appear before a Magistrate and it is not necessary that such accused should be produced by the police for recording the confession. But it is necessary that such appearance must be "in the course of an investigation" under Chapter XII of the Code. If the Magistrate does not know that he is concerned in a case for which investigation has been commenced under the provisions of Chapter XII it is not permissible for him to record the confession. If any person simply barges into the Court and demands the Magistrate to record his confession as he has committed a cognizable offense, the course open to the Magistrate is to inform the police about it. The police in turn has to take the steps envisaged in Chapter XII of the Code. It may be possible for the Magistrate to record a confession if he has reason to believe that investigation has commenced and that the person who appeared before him demanding recording of his confession is concerned in such case. Otherwise the Court of a Magistrate is not a place into which all and sundry can gatecrash and demand the Magistrate to record whatever he says as self-incriminatory."
(emphasis supplied)
21. No prior verification having been made, for that reason, the alleged confessional statement recorded by the Magistrate (in that case), was treated to be an idle exercise of power, of no consequence or legal effect.
22. Also, the Supreme Court in the case of Ajay Kumar Parmar Vs. State of Rajasthan reported in 2012 (12) SCC 406 reiterated the principle laid down in the case of Jogendra Nahak & Others Vs. State of Orissa & Others (supra) after taking note of the distinction, on facts, drawn by that Court to the aforesaid judgment in the case of Mahabir Singh Vs. State of Haryana (supra). In that case, a statement of the informant/victim (being a person covered under section 164 (5A) Cr. P.C.), was recorded by the Magistrate, upon an application of the informant/victim though she had not been sponsored/produced by the investigating agency. By that statement, the informant falsified the F.I.R. allegations. However, a charge-sheet was filed. Relying on the disputed statement (under Section 164 Cr.P.C.) of the victim, the Magistrate did not take cognizance and acquitted the accused person. It was observed by the Supreme Court as below:
"11. A three-Judge Bench of this Court in Jogendra Nahak v. State of Orissa, held that sub-section (5) of Section 164, deals with the statement of a person, other than the statement of an accused i.e. a confession. Such a statement can be recorded, only and only when, the person making such statement is produced before the Magistrate by the police. This Court held that, in case such a course of action, wherein such person is allowed to appear before the Magistrate of his own volition, is made permissible, and the doors of court are opened to them to come as they please, and if the Magistrate starts recording all their statements, then too many persons sponsored by culprits might throng before the portals of the Magistrate's Courts, for the purpose of creating record in advance to aid the said culprits. Such statements would be very helpful to the accused to get bail and discharge orders.
12. The said judgment in Jogendra Nahak case was distinguished by this Court in Mahabir Singh v. State of Haryana, on facts, but the Court expressed its anguish at the fact that the statement of a person in the said case was recorded under Section 164 CrPC by the Magistrate, without knowing him personally or without any attempt of identification of the said person, by any other person.
13. In view of the above, it is evident that this case is squarely covered by the aforesaid judgment of the three-Judge Bench in Jogendra Nahak, which held that a person should be produced before a Magistrate, by the police for recording his statement under Section 164 CrPC. The Chief Judicial Magistrate, Sirohi, who entertained the application and further directed the Judicial Magistrate, Sheoganj, to record the statement of the prosecutrix, was not known to the prosecutrix in the case and the latter also recorded her statement, without any attempt at identification, by any court officer/lawyer/police or anybody else."
(emphasis supplied)
23. Thus, in the first place, as a rule, statement under section 164 Cr.P.C. may be recorded only of a person sponsored by the investigating agency. By way of an exception to that rule, a confessional statement (of person facing criminal investigation), may be recorded by the Magistrate, if he has reason to believe that the person seeking to make such a statement is an accused person in a criminal investigation and further, such person seeks to get recorded his confessional statement. Also, for that purpose, the Magistrate may first call for a police report and also seek identification of such a person, before proceeding to record his statement.
24. The Jharkhand High Court, in the case of Reshma Khan Vs. State of Jharkhand (supra) has clearly held contrary to the view taken by the Supreme Court in Jogendra Nahak & Others Vs. State of Orissa & Others (supra). The view taken therein had been disapproved by the Supreme Court while dealing with a similar view that had been then taken by the Madras, Orissa and Kerala High Courts.
25. In view of the above clear position of law, no right can be claimed by the present applicant no. 1 to get her statement recorded under Section 164 Cr.P.C. as admittedly, she had not been sponsored by the investigating agency. Also, from the perusal of the affidavit of the mother of the applicant no. 1, it appears that that the application was filed only to dilute the statement of the applicant no. 1, as recorded under section 161 Cr.P.C.
26. Therefore, for the above reasons, the order passed by the learned court below does not warrant any interference, though for reasons different from those contained in the impugned order.
27. The present application lacks merit and is accordingly dismissed.
Order Date :- 19.9.2018 Abhilash