IN THE HIGH COURT OF JUDICATURE AT PATNA Cr.Misc. No.14701 of 2004 SATISH KUMAR SHARMA & ORS Versus THE STATE OF BIHAR & ORS ----------- 4 7.7.2008 Heard learned counsel for the petitioners, learned counsel for the state and learned counsel for the opposite party no.2. This application has been filed for quashing the order dated 20.3.2004 passed by Chief Judicial Magistrate, Samastipur in Patori P.S. Case no. 15/2004 corresponding to G.R.No. 214/04 whereby and whereunder the Magistrate was directed to record the statement of Pachiya Devi under section 164 of the Code of Criminal Procedure (in short as Cr.P.C. ) at the instance of the informant. It appears that on the basis of statement of informant/opposite party no.2 the police registered Patori P.S.case no. 15/04 dated 17.2.2004 under sections 363 and 365 read with 34 of the Penal Code against the petitioners. It further appears that on 20.3.2004 at the instant of informant Tuntun Paswan, the Chief Judicial Magistrate directed Sri Ramanand Roy, Judicial Magistrate, to record the statement of victim lady under section 164 Cr.P.C. Learned counsel contended that when the impugned order dated 20.3.2004 was passed the case was still under investigation. He submitted that section 164(1) Cr.P.C. does not empower the Magistrate to record the statement of a person unsponsored by the 2 investigating agency. In support of his contention, learned counsel placed reliance on the following two decisions: 1. 2006(2) PLJR 226 (Pintu Singh @ Rajv Ranjan Kumar Singh Vrs The State of Bihar). 2. 2006(1) PLJR 192 (Hare Ram Singh and ors. Vrs The State of Bihar and anr.). Learned counsel for opposite party no.2 on the other hand, opposed the application and submitted that against the order dated 20.3.2004 petitioners preferred Cr. Revision application before the learned Sessions Judge and the same was dismissed in default. He submitted that against the said order petitioners did not prefer any application before this Court. The decisions relied upon by the learned counsel support his argument. Thus the position is that statement of a person cannot be recorded by the Magistrate who is not sponsored by the investigating agency. Admittedly in the present case statement of victim lady under section 164 Cr.P.C. has been recorded at the instance of the informant. Any decision or order arrived at on consideration of such statement would vitiate the order. In the facts and circumstances of the case, this application is allowed and the impugned order dated 20.3.2004 is hereby quashed. The statement of the victim girl so recorded shall not be considered by the learned Magistrate in further proceeding of the case. AI (M.Saran,J)