A Magistrate does not have investigative powers to record statements during the investigation: Rajasthan High Court

 on 16 11 2020 at 11:24:56 AM ) No.3545 2020Ramswaroop S o Shri Bherulal Present Sewa Sahakari SamitNagal Bairasi Tehsil Dausa District DausaPetitionerVersusState Of Rajasthan through P.P. RespondentFor Petitioner(s) : Mr. M.K. KaushikFor Respondent(s): Mr. Ramesh Choudhary PPHON BLE MR. JUSTICE SANJEEV PRAKASH SHARMAJudgmentReportable:06 11 20201.The present petition has been filed by the petitioner victim who had lodged the complaint against the accused which wasregistered as an FIR under Section 156(3) Cr.P.C. and sent forinvestigation to the Investigating Officer. An FIR was registeredunder Sections 406 420 167 467 468 471 & 120 B IPC whereinan allegation has been levelled of the accused having committedan embezzlement of a huge sum of Rs.6 07 29 306 . 2.The grievance of the petitioner victim is that when heappeared before the Investigating Officer his statement waswrongfully recorded under Section 161 Cr.P.C. by the InvestigatingOfficer and he therefore moved an application to the concernedMagistrate seeking liberty to give his statement under Section 164Cr.P.C. on oath so that the correct facts may come out before thecourt. It is his submission that the Investigating Officer was trying[CRLMP 3545 2020]to help the accused and was therefore not recording the statementof the petitioner correctly. 3.Learned counsel points out that the statement was recordedby the Investigating Officer on 9.7.2020 and when the petitionerlearnt that the statement has been wrongfully recorded heimmediately moved an application on the next date before theconcerned Magistrate.4.The petitioner’s counsel submits that the learned Magistratehas rejected application of the petitioner relying on the law as laiddown by the Supreme Court in the case of Jogendra Nahak &Others Versus State of Orissa & Others reported in 2000(1)SCC 272 wherein the Supreme Court has observed that thestatement of witnesses cannot be directly recorded by theMagistrate as it would open a pandora’s box and it should be onlywhen an application is moved by the concerned InvestigatingOfficer that the statement can be recorded of a witness underSection 164 Cr.P.C. Learned counsel for the petitioner also submitsthat the facts of the case in Jogendra Nahak & Others[CRLMP 3545 2020]6.However the facts of the present case are totally differentand learned counsel submits that in the present case it is thevictim i.e. complainant who is seeking his correct statement to berecorded and has alleged that the Investigating Officer haswrongfully recorded his statement.7.Learned counsel also submits that the provisions of Section163(2) Cr.P.C. allow a person to make his submission on hisfreewill independent of the statement made before theInvestigating Officer and such provision is only subject to theconditions for recording confessional statement as under Section164(4) Cr.P.C. Learned counsel submits that the said aspect hasnot been considered in the judgment of the Jogendra Nahak &Othersand therefore the facts of the present case aredistinguishable from that before the Hon’ble Apex Court.8.He therefore prays that in the present case the directionsought to be issued to the learned Magistrate to record thestatement of the petitioner so that the facts which have beenmentioned in the FIR are supported by the petitioner through hisstatement made on oath under Section 164 Cr.P.C. It would alsobe in the interest of justice that the correct facts are thereforecome before the court to bring home conviction to the concernedaccused.9.I have considered the submissions.10.Chapter XII of Cr.P.C. lays down the provisions relating toinformation to the Police and their powers to investigate. Once anFIR has been registered either under Section 154 Cr.P.C. or afterdirections issued under Section 126(3) Cr.P.C. powers have beenprovided to the Police Officer to conduct investigation inpreliminary inquiry and also examined the witnesses under[CRLMP 3545 2020]Section 161 Cr.P.C. Section 162 Cr.P.C. lays down provisions andtheir statements to the Police are not required to be signed andthe relevance to such statement for the purpose of evidence interms of Section 145 of the Evidence Act also have been noticedunder Section 162 Cr.P.C.11.Section 163 and 164 Cr.P.C. which are relevant for thepresent case reads as under: “163. No inducement to be offered.—(1) Nopolice officer or other person in authority shall offer ormake or cause to be offered or made any suchinducement threat or promise as is mentioned in section24 of the Indian Evidence Act 1872But no police officer or other person shall prevent byany caution or otherwise any person from making in thecourse of any investigation under this Chapter anystatement which he may be disposed to make of his ownfree will: Provided that nothing in this sub section shallaffect the provisions of sub sectionof section 164. 164. Recording of confessions andstatements.—(1) Any Metropolitan Magistrate orJudicial Magistrate may whether or not he hasjurisdiction in the case record any confession orstatement made to him in the course of an investigationunder this Chapter or under any other law for the timebeing in force or at any time afterwards before thecommencement of the inquiry or trial:(2) The Magistrate shall before recording any suchconfession explain to the person making it that he is notbound to make a confession and that if he does so itmay be used as evidence against him and theMagistrate shall not record any such confession unless upon questioning the person making it he has reason tobelieve that it is being made voluntarily.(3) If at any time before the confession is recorded theperson appearing before the Magistrate states that he isnot willing to make the confession the Magistrate shall[CRLMP 3545 2020]not authorise the detention of such person in policecustody.(4) Any such confession shall be recorded in the mannerprovided in section 281 for recording the examination ofan accused person and shall be signed by the personmaking the confession and the Magistrate shall make amemorandum at the foot of such record to the followingeffect:—“I have explained tothat he is not bound tomake a confession and that if he does so anyconfession he may make may be used as evidenceagainst him and I believe that this confession wasvoluntarily made. It was taken in my presence andhearing and was read over to the person making it andadmitted by him to be correct and it contains a full andtrue account of the statement made by him. A. B. Magistrate.”Any statementmade undersub sectionshall be recorded in such mannerhereinafter provided for the recording of evidence as is in the opinion of the Magistrate best fitted to thecircumstances of the case and the Magistrate shall havepower to administer oath to the person whose statementis so recorded.(a) In cases punishable under section 354 section354A section 354B section 354C section 354D subsectionor sub sectionof section 376 section376A section 376B section 376C section 376D section376E or section 509 of the Indian Penal Codethe Judicial Magistrate shall record the statementof the person against whom such offence has beencommitted in the manner prescribed in sub sectionas soon as the commission of the offence is brought tothe notice of the police: Provided that if the person making the statement istemporarily or permanently mentally or physicallydisabled the Magistrate shall take the assistance of aninterpreter or a special educator in recording thestatement: Provided further that if the person making the statementis temporarily or permanently mentally or physicallydisabled the statement made by the person with theassistance of an interpreter or a special educator shallbe videographed.A statement recorded under clauseof a person who is temporarily or permanently mentally or physicallydisabled shall be considered a statement in lieu of[CRLMP 3545 2020]examination in chief as specified in section 137 of theIndian Evidence Act 1872such that themaker of the statement can be cross examined on suchstatement without the need for recording the same atthe time of trial.]The Magistrate recording a confession or statementunder this section shall forward it to the Magistrate bywhom the case is to be inquired into or tried. 12.From the perusal of the aforesaid provisions it is apparentthat while statement of witnesses can be examined and recordedby the Police under Section 161 Cr.P.C. and such statements arenot required to be signed in terms of Section 162. Section 163provides that no Police Officer or any other authority shall preventby any caution or otherwise any person in the course of anyinvestigation under this Chapter any statement which he may bedeposed to make on his own freewill.13.The question before this court is that if such is the case asalleged by the petitioner who has been prevented to give hisstatement of his own freewill and his statement under Section 161Cr.P.C. has been recorded against his will can he move anapplication before the Magistrate for getting his statementrecorded in support of the complaint made by him.14.A close look at the judgment passed by the Supreme Courtin the case of Jogendra Nahak & Others(supra) shows that theApex Court had dealt with the provisions of the aforesaid Chapterand has observed as under: “7. The argument addressed is that if theMagistrate has power to record a statement underSection 164 of the Code at the instance of a witness this is not the stage to consider whether witness hasapproached the Magistrate with bonafides or not asthat aspect should have been left to the trial court todecide while considering the reliability of his testimony.At present we may decide the question whether awitness can on his own motion approach a Magistrate[CRLMP 3545 2020]with a request that his statement may be recordedunder Section 164 of the Code.15. Section 160 of the Code deals with thepowers and duties of the police regarding examination(including interrogation) of persons who areacquainted with the facts and circumstances of thecase and also regarding the use of such statements inthe trial. It is in the above context that Section 164 isincorporated in this Chapter for recording ofconfessions and statements.16. By Sections 165 to 173 the Code prescribesprovisions which the police have to adopt as follow upsteps in the matter of investigation and also therequirements to be complied with on conclusion ofsuch investigation. 17. Section 173 says that on completion ofinvestigation the officer in charge of police stationshall forward a report to the Magistrate stating interalia the names of the persons who appear to beacquainted with the circumstances of the case. Sub sectionof Section 173 requires that the policeofficer shall forward to the Magistrate along with thesaid reportall documents or relevant extractsthereof on which the prosecution proposes to rely and(b) the statements recorded under Section 161 of allthe persons whom the prosecution proposes toexamine as its witnesses. 18. Even when a further investigation asindicated under Sub sectionis conducted by thepolice they have to comply with all the requirementscontained in the preceding sub sections.19. In the scheme of the above provisions thereis no set or stage at which a Magistrate can take noteof a stranger individual approaching him directly with aprayer that his statement may be recorded inconnection with some occurrence involving a criminaloffence. If a Magistrate is obliged to record thestatements of all such persons who approach him thesituation would become anomalous and everymagistrate court will be further crowded with anumber of such intending witness brought up at thebehest of accused persons.”15.And after considering the law it has reached to the followingconclusion which reads as under: “22. If a Magistrate has power to recordstatement of any person under Section 164 of the[CRLMP 3545 2020]Code even without the investigating officer moving forit then there is no good reason to limit the power toexceptional cases. We are unable to draw up a dividingline between witnesses whose statements are liable tobe recorded by the Magistrate on being approached forthat purpose and those not to be recorded. Thecontention that there may be instances when theinvestigating officer would be disinclined to recordstatements of willing witnesses and therefore suchwitnesses must have a remedy to have their versionregarding a case put on record is no answer to thequestion whether any intending witness canstraightaway approach a Magistrate for recording hisstatement under Section 164 of the Code. Even forsuch witnesses provisions are available in law e.g. theaccused can cite them as defence witnesses duringtrial or the court can be requested to summon themunder Section 311 of the Code. When such remediesare available to witnesseswe do not find any specialreason why the Magistrate should be burdened withthe additional task of recording the statements of alland sundry who may knock at the door of the courtwith a request to record their statements underSection 164 of the Code.23. On the other hand if door is opened to suchpersons to get in and if the Magistrates are put underthe obligation to record their statements then toomany persons sponsored by culprits might throngbefore the portals of the Magistrate courts for thepurpose of creating record in advance for the purposeof helping the culprits. In the present case one of thearguments advanced by accused for grant of bail tothem was based on the statements of the fourappellants recorded by the Magistrate under Section164 of the Code. It is not part of the investigation toopen up such a vista nor can such step be deemednecessary for the administration of justice.24. Thus on a consideration of various aspects we are disinclined to interpret Section 164(1) of theCode as empowering a magistrate to record thestatement of a person unsponsored by theinvestigating agency. The High Court has rightlydisallowed the statements of the four appellants toremain on record in this case. Of course the said[CRLMP 3545 2020]course will be without prejudice to their evidence beingadduced during trial if any of the parties requires it.”16.Thus in clear terms the Supreme Court has held thatMagistrate does not have the power to record the statement of aperson unsponsored by the Investigating Agency. In other words it has empowered only the Investigating Agency to move anappropriate application for recording the statement of anywitnesses. The submission of the learned counsel for the petitioneris that the Apex Court was not considering the aspect regardingthe statement being wished to be recorded of complainant victimbeing not considered is an argument noticed to be rejected. Apresumption has to be drawn that the Apex Court while layingdown the law would apply in all the circumstances and therefore inview of the aforesaid judgment I am disinclined to accept thepresent petition and reject the same.17.With the aforesaid observations the criminal misc. petition isaccordingly dismissed.18.All pending applications shall also stand disposed of.(SANJEEV PRAKASH SHARMA) JKaran Bhutani 531 25 

Summary: The Magistrate does not have the power to record statements of a person unsponsored by the Investigating Agency since it might lead to burdening the Magistrate with additional tasks while simultaneously also opening up new avenues for culprits to escape the from the hands of the judiciary. The single bench consisting of J. Sanjeev Prakash Sharma, in the matter of Ramswaroop S/o Shri Bherulal, Present Sewa Sahakari Samit Nagal Bairasi Tehsil Dausa District Dausa (Raj.) v. State of Rajasthan through P.P. [S.B. Criminal Miscellaneous (Petition) No. 3545/2020], shed light upon the investigating powers of the Police. The petitioner-victim lodged a complaint against the accused as an FIR under Section 156(3) Crpc. The FIR was registered under Section 406, 420, 167, 467, 468, 471 &amp; 120-B of the IPC wherein the allegation levelled against the accused was that of embezzlement of a huge sum of Rs. 6,07,29,306/-. In the present petition, the petitioner argued that his statement was wrongfully recorded by the Investigating Officer under Section 161 Crpc. The petitioner had previously moved an application to the Magistrate seeking liberty to give his statement under Section 164 Crpc. on oath so that the correct facts may go on the court records. In this application, the victim claimed that the Investigating Officer was helping the accused and therefore not recording the statement correctly. The Magistrate rejected the application relying on the Supreme Court judgement in the case of Jogendra Nahak &amp; Others v. State of Orissa and Others [(2000) 1 SCC 272], wherein it was observed that “the statement of witnesses cannot be directly recorded by the Magistrate as it would open a pandora’s box and it should be only when an application is moved by the concerned Investigating Officer that the statement can be recorded of a witness under Section 164 Crpc.”.  In the present petition, the counsel for the petitioner submits that the facts of the aforementioned case were completely different from the present case. In the former case, the witnesses wanted to bring the correct facts on record before the Investigating Officer and hence, approached the HC, however, in the present case, it is the victim himself who wants to do so. The counsel hence, pleaded that it should be directed to the Magistrate to record the statement of the petitioner in the interest of justice. The High Court, having considered the submissions, looked into Chapter XII of the Crpc. which lays down provisions relating to information to the Police and their powers to investigate. Considering Section 163 and 164 of the same the court said that “it is apparent that while the statement of witnesses can be examined and recorded by the Police under Section 161 Crpc. and such statements are not required to be signed in terms of Section 162. Section 163 provides that no Police Officer or any other authority shall prevent by any caution or otherwise any person in the course of any investigation under this Chapter any statement which he may be deposed to make on his own free will. The question before this court is that if such is the case as alleged by the petitioner who has been prevented to give his statement of his own free will and his statement under Section 161 Cr.P.C. has been recorded against his will, can he move an application before the Magistrate for getting his statement recorded in support of the complaint made by him”. Further looking at the Jogendra Nahak case, the HC rejected the petition stating that “the Supreme Court has held that Magistrate does not have the power to record the statement of a person unsponsored by the Investigating Agency. In other words, it has empowered only the Investigating Agency to move an appropriate application for recording the statement of any witnesses”. Click here to read the judgement