WP(C) 5899/2010 BEFORE THE HON’BLE MR JUSTICE IA ANSARI JUDGMENT & ORDER A question of great importance has been raised, in this writ petition, m ade 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 investigatio n by police, has any right to get his or her statement recorded, under Section 1 64 Cr.PC, by a Magistrate by filing a petition, in the Court of a Magistrate, se eking 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 indi cated below: (i) The petitioner, who claims to be an educated female person of th e 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, 1 954, at Mangaldoi, in the district of Darrang. The petitioner claims that she, w ithout 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, Guwa hati. However, the petitioner came to learn that Baihata Chariali P.S. Case No.1 28/2010 has been registered, under Section 366 IPC, against her husband on the b asis of a First Information Report lodged by her brother, Khargeswar Deka, the i nformant’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 hus band) had forcibly taken her away from Singharpara Chowk. (ii). During the course of investigation, the petitioner, according to what th e petitioner contends, has been projected as a victim of abduction, though she h ad married the accused aforementioned voluntarily and she has been living with h im 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 t o 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 ali a, that she might have been sponsored by the accused so as to paint himself as a n innocent person. 4. Aggrieved by the order aforementioned rejecting her prayer that her stat ement be recorded in terms of Section 164 Cr.PC., the petitioner has, now, impug ned the same by way of this writ petition and has sought for a direction to be i ssued to the learned Sub-Divisional Judicial Magistrate, Mangaldoi, to record he r statement as a witness, under Section 164 Cr.PC, in connection with the case a forementioned. 5. I have heard Mr. NN Karmakar, learned counsel, for the petitioner, and M r. G. Soren, learned Govt. Advocate, for the respondents. 6. Drawing attention of this Court to the provisions contained in Section 1 64 Cr.PC., particularly, Sub-Section (4) thereof, Mr. Karmakar contends that a M agistrate is competent, under the law, to record statement of any person as a w itness under Section 164 Cr.PC and, in order to enable a Magistrate to record st atement 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 Magistra te is competent to record statement of any person, during the course of investig ation, 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 m ade 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, und er Section 164 Cr.PC, or not. 7. According to Mr. Karmakar, the learned Magistrate has, erroneously and c ontrary to law, failed to exercise the power of recording statement of the petit ioner 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 ref using 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 iss ues a writ directing the learned Magistrate to record statement of the petitione r 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 l aw for the time being in force, or at any time afterwards before the commencemen t 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 Sect ion 281 for recording the examination of an accused person and shall be signed b y the person making the confession; and the Magistrate shall make a memorandum a t the foot of such record to the following effect- I have explained to (name) that he is not bound to make a confession a nd that, if he does so, any confession he may make may be used as evidence again st 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 m ade 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 defi nite person against whom there would an accusation. This apart, even a Magistrat e can ascertain whether or not the person, who opts to get his confession record ed, is or is not an accused person. Such a confession can be used against the ma ker 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, howe ver, not the case of a person, who is not an accused, but claims to be acquainte d with the facts of a case, for, such a person does not make any incriminating s tatement against himself if he claims to be a mere witness of fact. His statemen t, in a given case, may not be relied upon by the prosecution. In other words, p rosecution has the option of not placing any reliance on such a person’s stateme nt 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 inve stigation has to be, ordinarily, under the control of the investigating agency a nd, in rare cases, may be supervised by a Court of competent jurisdiction. 11. Coupled with the above, independence of investigating agency cannot be t aken away by permitting a person, who claims to be a witness to get his statemen t recorded under Section 164 Cr.PC and thereby deflect the whole course of inves tigation. No doubt, Section 160 read with Section 161 Cr.PC empowers a police of ficer and casts, correspondingly, a duty upon him, to examine persons acquainted with the facts of a given case. Such an examination would, obviously, include i nterrogation 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 inv estigation, as envisaged by the Code of Criminal Procedure, that the provisions with regard to recording of confessional statement have been incorporated in Sec tion 164. In the scheme of the Code relating to investigation and trial, there i s 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 connect ion with any criminal offence by claiming that he is acquainted with the facts o f the case. If such a power is acceded to a Magistrate, the possibility of witne sses being propped up by the accused to deflect attention from him cannot be rul ed out. 12. It has been pointed out, on behalf of the petitioner, that though may no t be, ordinarily, yet, in exceptional circumstances, the power to record stateme nt 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. I f the power to record statement under Section 164 Cr.PC, at the option of a per son, 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 recorde d 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 M agistrate of any person as contended by Mr. Karmakar, whenever such a person opt s 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 Vs. 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 i f 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 Ma gistrate 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 appel lants recorded by the Magistrate under Section 164 of the Code. It is not part o f the investigation to open up such a vista nor can such step be deemed necessar y 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 record ed 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, ther e is nothing in the law preventing the witness to go to the Magistrate and get h is statement recorded. While so taking the view, the learned Judge did sound a n ote of caution by observing that such a situation would be rare inasmuch as a Ma gistrate has the discretion to record or not to the record such a statement. Sim ilar views were expressed in State of Orissa Vs. Amitava Prasad Das (1979) 47 Cu t Lt. 298. Pointing out that it would not be possible to draw a dividing line be tween a witness, whose statement deserves to be recorded by a Magistrate under S ection 164 if the witness approaches the Magistrate and a case, where the witnes s’s statement does not deserve to be recorded, the Supreme Court, in Jogendra Na hak (supra), pointed out as under: 23. If a Magistrate has power to record statement of any person under Section 1 64 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 dra w up a dividing line between witnesses whose statements are liable to be recorde d by the Magistrate on being approached for that purpose and that those not be r ecorded. The contention that there may be instances, when the investigating offi cer 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 straight away 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 an y 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 C ourt 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 pro visions of Section 164(1) Cr.PC, the Supreme Court concluded, at para 25, in Jog endra Nahak (supra), thus: 25. Thus, on a consideration of various aspects, we are disinclined to interpre t 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 cas e. 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 tha t 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 S ection 164 Cr.PC. Such a power may, however, be exercised by a Court, at the tri al, by invoking its power under Section 311 Cr.PC provided that the trial has co mmenced. 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, inc lude a stage, when the adducing of evidence by the prosecution has not even star ted. 17. Because of what have been discussed and pointed out above, this Court do es 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 pet itioner 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, therefo re, not admitted and shall accordingly stand dismissed. 18. No order as to costs.