[1] SB Crim Misc. Pet. No. 2387/2009 IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JAIPUR BENCH, JAIPUR O R D E R S.B. CRIMINAL MISC. PETITION NO. 2387/2009 SMT. MANJU DEVI Vs. STATE OF RAJASTHAN Date: 04.11.2009 HON'BLE MR. JUSTICE K.S. RATHORE Mr. Biri Singh, Advocate for the petitioner. Mr. Sanjeev Mehla, Public Prosecutor for the State. **** The present criminal misc. petition under Section 482 Cr.P.C. is preferred by the petitioner seeking direction for recording the statement of the petitioner-prosecutrix under Section 164 Cr.P.C. afresh in FIR No. 486/2009 registered at Police Station Bagru, District Jaipur. Learned counsel for the petitioner submits that on 13.08.2009 the petitioner was taken by Mustgim @ Sethi and Chhotu in Bolero Jeep from Bhankrota Chauraha to Jaipur after enticing her against her will. They stayed in the night at the house of Chhotu, where both these persons committed rape with her. On next day she was taken to Ajmer, where they stayed for two days at Ajmer Hotel and there also both these persons committed rape with her. They have also taken her obscene photographs to blackmail and threaten her so that she may not disclose the incident to anyone. On 08.09.2009, the statement of the prosecutrix-petitioner was recorded under Section [2] SB Crim Misc. Pet. No. 2387/2009 164 Cr.P.C. in the Court of Judicial Magistrate No.2, Jaipur District, Jaipur, wherein she did not level any allegation of rape against the aforesaid persons and stated that she went with these persons on her own. The submissions of the learned counsel for the petitioner is that the statement earlier recorded of the petitioner was under threat as the accused persons accompanied her up to the Court and when she was going inside the Court, the accused- persons gave her threatening to face dire consequences, even of publishing her obscene photographs. Now the petitioner wishes to give true and correct statement and, therefore, the present petition has been filed for seeking direction for recording the statement of the prosecutrix- petitioner under Section 164 Cr.P.C. afresh. In support of his submissions, the learned counsel for the petitioner placed reliance on the judgment of the Division Bench of this Court rendered in the case of Birju Ram & Anr. Vs. The State of Rajasthan & Ors., reported in 2006(1) Cr.L.R.(Raj.) 501, wherein the Division Bench has held as under:- “6. It is unfortunate that an individual or a caste group or personal relations or may be for other reasons enjoys patronage and takes the criminal to such a level of notoriety that they consider that law cannot reach to them. It is only the vigilant State and strong judiciary by their pro-active role can send a [3] SB Crim Misc. Pet. No. 2387/2009 message to the society that the patronage culture will no more be able to protect them.” In the aforesaid case of Birju Ram (supra), the Division Bench has followed the ratio decided by the Hon'ble Supreme Court in the case of Joginder Nahak Vs. State of Orissa, reported in AIR 1999 SC 2565, wherein the Hon'ble Supreme Court has observed as under:- “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 straightway 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.” [4] SB Crim Misc. Pet. No. 2387/2009 I have heard learned counsel for the petitioner and carefully gone through the FIR as well as the statement of the prosecutrix recorded under Section 164 Cr.P.C. I have also considered the request made on behalf of the petitioner seeking direction for recording the statement of the prosecutrix-petitioner under Section 164 Cr.P.C. afresh and carefully perused the judgment rendered by the Division Bench of this Court. I have also heard the learned Public Prosecutor, who has no objection if the statement of the prosecutrix-petitioner is recorded under Section 164 Cr.P.C. afresh as the earlier statement recorded was given under threat. Looking to the facts and circumstances of the case and in view of the ratio decided by the Hon'ble Supreme Court as well as the Division Bench of this Court, in the interest of justice, this Court deem it proper to direct the concerned Magistrate to record the statement of the prosecutrix-petitioner under Section 164 Cr.P.C. afresh. The criminal misc. petition stands allowed in the terms as indicated herein above. (K.S. RATHORE),J. /KKC/