HON’BLE SRI JUSTICE N. RAVI SHANKAR CRIMINAL PETITION No.5339 of 2011 ORDER:- Whether at the instance of an accused the concerned Chief Judicial Magistrate (C.J.M) can be directed to nominate a Magistrate for recording the statements of witnesses under Section 164 Cr.P.C in a police case under investigation when the C.J.M rejected the police requisition for that purpose is the point which arises in this petition. 2. The admitted circumstances which led to the filing of this petition are these. The petitioner herein is the first accused in Cr.No.13 of 2011 of Jaladurgam P.S. Kurnool District. That case was registered initially under Section 174 Cr.P.C in connection with the un-natural death of a married woman by name Nanabala Revathi(deceased) who is the wife of the petitioner herein. 3. The Tahsildar, Anathapur, held an inquest over the dead body of the deceased and in the course of inquest the mother of the deceased and her brothers and some others were also examined. In the inquest the apparent cause of death was ascertained as suicide because of the harassment meted out to the deceased by her husband and other relatives. It was also found that the deceased consumed Super vasmol hair dye to end her life and that she ultimately died in the concerned hospital three days later while undergoing treatment. Thereafter the offences under Sections 498-A and 306 IPC were added to the case by the police. 4. Subsequently the Sub-Inspector of Police, Jaladurgam filed on 29.04.2011 a requisition before the C.J.M requesting him to nominate a J.F.C.M to record the statements of above witnesses under Section 164 Cr.P.C. The version of the Sub-Inspector in the above requisition is that the above witnesses earlier in the course of investigation stated that the deceased committed suicide by consuming Super Vasmol hair dye unable to bear with the harassment of her husband and his relatives suspecting her fidelity and also demanding properties or money and that they later on changed their version and stated that the deceased was suffering from some ill health and that on the night of 22.03.2010 at her village due to darkness she mistakenly consumed Super Vasmol hair dye mistaking it for her Thyroid medicine and that resulted in her death. 5. With the above pleas in his requisition, the Sub-Inspector requested the C.J.M to nominate a Magistrate for recording the statements of the said witnesses u/s.164 Cr.P.C so that police may take a final decision in the matter regarding the case. 6. The learned C.J.M on the above requisition passed the following order: “Seen the statements of witnesses. No need to appoint Magistrate to record statements of witnesses under Section 164 Cr.P.C. Hence requisition is rejected.” 7. It is challenging the above order of the C.J.M the present Criminal petition is filed by one of the accused i.e. A.1 in the case who is the petitioner herein. 8. The main plea of the petitioner is that the police wanted the statements of the witnesses to be recorded under Section 164 Cr.P.C in order to ascertain the truth which is that the deceased by mistake consumed the Super Vasmol poison as mentioned supra and her death was accidental and that himself or his other relatives are not responsible for her death. This petitioner as already mentioned supra is the husband of the deceased. 9. The learned counsel for the petitioner says that the C.J.M passed a very cryptic order without giving reasons at all for rejecting the request of the police and therefore it should be set aside. The other argument advanced by him is that if the statements of the witnesses are recorded under Section 164 Cr.P.C they will speak the truth which is that the death of the deceased is accidental and consequently that would avoid an un- necessary trial for them as even if any trial is also held on a charge sheet which may be filed by the police the case would result in acquittal as witnesses will not support it. 10. The Additional Public Prosecutor, pointed out that statements of witnesses under Section 164 Cr.P.C can be recorded only when the witnesses are sponsored by the investigating police officer and not by an accused or any other person and therefore the petitioner has no right to challenge the impugned order. He pointed out that since police did not choose to challenge the impugned order the police should be given the discretion to take a decision in the mater and this Court need not interfere in the matter though the order is cryptic. The point is now taken up. 11. The above order of the learned C.J.M undoubtedly can be said to be a cryptic order and he has not recorded any reasons to indicate his mind as to what weighed with him in refusing the request of the Sub-Inspector. He merely stated that he has gone through the earlier statements of the witnesses and felt that there was no need to record the statements of witnesses. However it is not proposed to go into the question whether the above order of the C.J.M is valid or not since police have not questioned that order and as it is only the first accused who has questioned it and sought for a direction to the C.J.M to record the statements of witnesses under Section 164 Cr.P.C. The question is whether the petitioner who is the accused can be permitted to seek such a relief. 12. In Jogendra Nahak v. State of Orissa[1] their Lordships of the Supreme Court had an occasion to deal with the object and scope of Section 164 Cr.P.C. The judgment deals at length with the dangers involved in allowing persons other than the investigating agency in approaching the Magistrates for recording their statements or the statements of others under Section 164 Cr.P.C and it is not necessary to repeat them here. After mentioning about the said dangers their Lordships in para-24 of the judgment concluded that statements of persons not sponsored by the investigating agency should not be recorded by the Magistrates. 13. In the present case the concerned investigating police officer, as already mentioned supra, did not choose to question the impugned order but petitioner who is an accused has come up before this Court questioning it. It may be noted that the conclusion of the Supreme Court in Jogendra Nahak’s case equally applies to an accused person also in a case like this. What should be noted is that if in a case like this if Section 164 Cr.P.C statements of witnesses are ordered to be recorded at the instance of accused i.e. A-1, that would amount to doing so at his instance and not at the instance of police. It therefore follows he cannot be granted that relief. 14. One argument or question which may arise is that this is not a case where the accused has himself approached the Court or Magistrate for recording the statements of witnesses under Section 164 Cr.P.C on his own, but he has made this request to record the statements of witnesses who were already sponsored by the police but whose request was rejected by the C.J.M by a cryptic order and therefore the request of the petitioner should be considered as the fact situation here is different from the one in which Jogindra Nahak’s case was decided. This argument may sound forceful but only apparently. The police have a statutory power of investigation under Cr.P.C but having made the request before the C.J.M which was rejected by him, it is not known as to what are the reasons for which police have kept quiet without challenging that order. It is quite possible that police may have concluded that the version of the witnesses may be correct, and the other version that the death was accidental may have been an influenced one either by bribing or threats. Unless the reasons are known for the silence on the part of police for not challenging the impugned order nothing can be concluded on this aspect by this Court. It is quiet possible that the investigating officer in the course of investigation may have concluded that the second version of the witnesses relating to accidental death is not voluntary and in that view of the matter they may have kept quiet without challenging the impugned order. 15. It should also be noted here that the statements of witnesses recorded under Section 164 Cr.P.C cannot be treated as substantive evidence and they are useful only for contradicting the evidence of witnesses given in the Court. That being the position the police may have also kept quiet without challenging the impugned order. It may be noted that under the Cr.P.C the police have a statutory power of investigation and they may take various steps contemplated under it to take up and proceed with investigation in cognizable cases and may reach their own conclusions i.e. either to file a charge sheet or a closure report basing upon the statements of witnesses and other material gathered by them. The police investigating officer can thus have his own discretion in the matter either to close the case or to charge sheet the accused. Thus the above argument cannot be accepted to ignore the Supreme Court decision in Jogendra Nahak’s case. 16. The learned counsel for the petitioner however placed reliance upon a Division Bench judgment of the Rajasthan High Court given in Birju Ram and others v. State of Rajasthan[2]. In this case the Rajasthan High Court considered the aforesaid Supreme Court decision in Jogindra Nahak’s case and concluded at the end of para 10 that according to the said decision of the Supreme Court the statement of a witness under Section 164 Cr.P.C can be recorded only when he is sponsored by the investigating agency. The Rajasthan High Court then proceeded to make an observation that in the alternative the Magistrate should look to the police dairy and give sufficient time for reflection and then proceed to record the statement. This subsequent observation does not gain support from the Supreme Court decision referred to supra and which is binding on this Court. Hence the second decision referred to supra is not followed. No other Supreme Court decision has been brought to my notice to ignore the proposition laid down in Jogindra Nahak’s case. 17. Accordingly, though the impugned order is a cryptic one, for the aforesaid reasons this petition is dismissed. ______________________ N. RAVI SHANKAR, J 19th July, 2011 Vjl/CVRK [1] 1999 Crl.L.J.3976 [2] 2006 Crl.L.J 1794