IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH FRIDAY, THE 10TH JUNE 2011 / 20TH JYAISHTA 1933 Crl.MC.No. 1708 of 2011() ----------------------- C.M.P. NO.4924/2011 OF JUDICIAL FIRST CLASS MAGISTRATE COURT, KARUNAGAPPALLY .................. PETITIONER / ALLEGED MISSING PERSON : ---------------------------------------------------------------- SOUMYA, W/O.ARUN, INCHAKKATTUMUIYIL, SOORANADU THEKKU VILLAGE, (FROM GOKULAM, PANMANA, CHAVARA P.O., KOLLAM) KOLLAM DISTRICT. BY ADV. SRI.K.SUBASHCHANDRA BOSE RESPONDENT / STATE : ----------------------------------- STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. BY PUBLIC PROSECUTOR SRI. MANU THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON 10/06/2011, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: Mn THOMAS P JOSEPH, J. ---------------------------------------- Crl.M.C.No.1708 of 2011 --------------------------------------- Dated this 10th day of June, 2011 ORDER Petitioner challenges Annexure-VII, order passed by the learned Judicial First Class Magistrate, Karunagappally in Crime No.660 of 2011 of Chavara Police Station. That case was registered for 'woman missing' on the information given by the paternal uncle of petitioner. According to the petitioner, she, her on went with her lover, Arun and they got married at Thrukalanjoor Sremahadevar Temple on 12.05.2011. Since then, they are living together. It is while so, that on the complaint of paternal uncle of petitioner, Chavara police registered Crime No.660 of 2011 under Sec.57(1)(a) of the Kerala Police Act (for short, "the Act”). Petitioner straight away approached the learned Magistrate and wanted her statement to be recorded. Learned Magistrate by Annexure-VII, order observed that petitioner not being an accused, her statement cannot be recorded and that petitioner has to report to the S.H.O concerned for interrogation. The S.H.O was directed to proceed in accordance with law. Learned counsel submitted that the order is not correct in that petitioner is entitled to get her statement Crl.M.C.No.1708 of 2011 -: 2 :- recorded by the learned Magistrate. It is also pointed out by learned counsel that at any rate learned Magistrate could not have directed petitioner to report to the S.H.O in view of Sec.57 (5) of the Act which states that if the missing person is traced in the investigation such person shall be entrusted to the guardian, in writing or, produced before the jurisdictional Magistrate. I have heard learned Public Prosecutor also. 2. The only provision under which learned Magistrate could record the statement is Sec.164 of the Code of Criminal Procedure (for short, "the Code”). The Supreme Court in Jogendra Nahak Vs. State of Orissa (1999(3) KLT 43) has held that the said provision does not empower the Magistrate to record statement of a person (not being an accused) unsponsored by the investigating officer. Petitioner is not an accused in Crime No.660 of 2011 and as such, petitioner could not straight away approach learned Magistrate and require her statement to be recorded under Sec.164 of the Code, unsponsored by the investigating agency. Hence I do not find any infirmity in the learned Magistrate declining to record statement of petitioner. 3. Then the next question is whether petitioner should be directed to appear before the S.H.O concerned for interrogation. Under Sec.160 of the Code, the police officer has Crl.M.C.No.1708 of 2011 -: 3 :- the power to require attendance of any person acquainted with the facts and circumstances of the case before him by an order in writing. The proviso to the said provision says that no male person under the age of 15years or woman shall be required to attend at any place other than the place in which such male person or woman resides. 4. In view of Sec.160 of the Code, it was not necessary for learned Magistrate to direct petitioner to report to the S.H.O of Chavara Police Station. Instead, if the officer investigating Crime No.660 of 2011 desires to record statement of petitioner, he has to comply with Sec.160(1) of the Code subject to the proviso to the said provision (since petitioner is a woman) which I have stated above. It is also open to the officer investigating the case, on tracing petitioner to either entrust her with her guardian, in writing, or produce her before the Magistrate having jurisdiction in the matter. In exercising that power, the investigating officer shall take into account the age of petitioner and her claim that she is married to Arun on 12.05.2011. Resultantly this criminal miscellaneous case is allowed in part to the extent that the direction in Annexure-VII, order that petitioner shall report to the S.H.O, Chavara Police Station for interrogation is set aside. Instead, it is directed that the officer Crl.M.C.No.1708 of 2011 -: 4 :- investigating Crime No.660 of 2011, if he desires to record statement of petitioner shall comply with Sec.160(1) of the Code subject to the proviso thereto and exercise power under Sec.57(5) of the Act in the light of the observations I have made above. (THOMAS P JOSEPH, JUDGE) Sbna/-