Orissa High Court
Bhima Mallik vs State Of Orissa on 10 May, 1994
Equivalent citations: 1994(II)OLR110
Author: A. Pasayat
Bench: A. Pasayat
JUDGMENT A. Pasayat, J.
1. Can statement be recorded under Section 164 of the Code of Criminal Procedure, 1973 (in short, the 'Cr PC") by a Magistrate at the instance of informant is the sole question that falls for adjudication in this application.
2. Petitioner Bhima Mallik, who is the informant in G. R. Case No. 533 of 1993 pending in the Court of Judicial Magistrate, first class, Soro, made a motion before the learned Magistrate for recording his statement under Section 184, Cr PC. The prayer was refused by the learned Magistrate on the ground that (a) the Investigating Officer did not agree to such examination, and (b) a similar motion by Assistant Public Prosecutor was rejected earlier.
3. Learned counsel for the petitioner submitted that the course adopted by learned Magistrate in seeking agreement of the Investigating Officer is not in accordance with law. It is incumbent upon the Magistrate to record the statement when a motion is made by the informant. Learned counsel for State on the other hand submitted that power exercisable by learned Magistrate under Section 164, Cr PC is discretionary, and unless the request of a person for recording his statement is for the ends of justice, in an appropriate case learned Magistrate can refuse to accept such prayer. In the case at hand Investigating Officer being of the view that recording of statement under Section 164, Cr PC was unncessary, learned Magistrate was justified in refusing the prayer, particularly when a similar prayer was rejected earlier.
4. Section 164 ampowers any metropolitan or judicial Magistrate whether or not he has jurisdiction in the case to record any contession or statement of a person made in the course of investigation by the police, or when the investigation has been concluded at any time afterwards but before the commencement of the inquiry or trial. Section 164 comes into play when in the course of an investigation, an accused or any other person desiring to make any statement is brought to a Magistrate so that any confession or statement that he may be disposed to make of his free will is recorded. Confessional statements by accused to the police are absolutely excluded under Section 25 of the Indian Evidence Act, 1872 (in short 'Evidence Act'). Section 164, Cr PC is to be read together with Sections 24, 25, 26 and 29 of the Evidence Act. All statements by witnesses to the police are also shut out by Section 162 except for the strictly limited purpose of contradiction of prosecution witnesses during trial.
5. The object of police proceedings is to collect information as a preliminary step to the production of evidence in a judicial proceeding against an accused person. For this purpose, any person may be examined and any statement may be reduced to writing by the police. A Magistrate may prepare, what the police may not, a record of any statement, be it confession or not which is made to him before judicial proceedings commence. Proof of such statement is not prohibited. But express provision is made for proving the document under Section 90, Evidence Act and Section 463, Cr PC. The object of recording statements under Sec.164 is two-fold : one to deter witnesses from changing their stories subsequently and two, getting over the immunity from prosecution in regard to information given by witnesses under Section 162. It is not necessary that the Magistrate should be moved by the police in order that he might record a statement, There may be instance where the police may not desire to have recorded the statement of a witness for some reason or other. In such a case, there is nothing preventing the witness to go to the Magistrate and request him to record the statement, and if a Magistrate records his statement and transmits the same to the Court where the enquiry or the trial is to go on, there is nothing wrong in his action.
In my view, a statement under Section 164, Cr PC may be recorded not only at the instance of the police, but also at the instance of the accused, or the aggrieved person or at the request of the witness himself. Similar vie v has been expressed in Mohammad Zarfrar Khan v. The Crown : (1951) 52 CrLJ 1423 at P. 1431 : In re CW Cases AIR 1948 Madras 469 State of Orissa v. Amitava Prasad Das : (1979) 47 CLT 298 : and Kunjukutty v. State of Kerala : 1986 Cr LJ 504.
6 When a private party seeks to invoke the powers of a Magistrate under Section 164, Cr PC, the Magistrate has got a very wide discretion in setting or refusing to act,though the discretion has to be exercised judicially. Ordinarily when a police officer requests the Magistrate to record the statement of a witness on oath under Sea. 164, Cr PC, such a request will not be refused by the Magistrate. But when a private party seeks to invoke the powers of a Magistrate under the said section, the Magistrate has got a very wide discretion in acting or refusing to act. It is not obligatory upon the Magistrate to record the statement of an individual simply bacause an application is made to him that such a statement may be necessary in an enquiry or trial that may develop as a result of the investigation. But when the Magistrate refuses to exercise discretion it should be for good and sufficient reasons.
7. Discretion is a science of understanding to discern between falsity and truth, between right and wrong, between shadows and substance, between equity and colourable glosses and pretences, and not to act according to one's wills and private affections. Discretion necessarily implies good faith in discharging public duty. There is always a perspective within which a statute is intended to seperate; and any clear departure from its lines or objects is just as objectionable as fraud or corruption. Several principles can conveniently be grouped in two main categories; (i) failure to exercise discretion; and (ii) excess or abuse of discretionary power. The two classes are not, however, mutually exclusive. Thus, discretion may be improperly fettered, because irrelevant considerations have been taken into account. Discretion of a statutory body is never unfettered.. It is a discretion which is to be exercised according to law. That means at least this the statutory body must be guided by relevant considerations and not by irrelevant considerations. Discretion means sound discretion guided by law It must be governed by rule, not by humour; it must not be a bitrary, vague and fanciful. (Per Lord Mansfield in John Wilkes) (1770) 4, Burr 2528). In the words of Lord Cairns L.C. in Julius v. Bishop of Oxford :(1880) 5 A.C. 214, "there may be something in the nature of the thing empowered to be done, something in the object for which it is done, something in the condition under which it is to be done something in the title of person or persons for whose benefit the power is to be exercised, which may couple the power with a duty, and make it the duty of the person in whom the power is reposed to exercise that power when called upon to do so." In Halsbury's Laws of England, 4th Edition. Volume I, it has been observed :
"A statutory discretion is not, however, necessarily or, indeed, usually absolute; it may be qualified by express and implied legal duties to comply with substantive and procedural requirements before a decision is taken whether to act and how to act. Moreover, there may be a discretion whether to exercise a power, but no discretion as to the mode of its exercise; or a duty to act when some conditions are present, but a discretion how to act. Discretion may thus be cupled with duties."
8. Learned JMFC has not considered the application in the proper perspective. He is directed to reconsider the application, made by the informant.
The criminal misc. case is accordingly disposed of. Misc. case disposed of.