Calcutta High Court (Appellete Side)
Arjia Karim vs The State Of West Bengal & Ors on 10 February, 2011
Author: Jayanta Kumar Biswas
Bench: Jayanta Kumar Biswas
In The High Court At Calcutta
Constitutional Writ Jurisdiction
Appellate Side
Present:
The Hon'ble Mr. Justice Jayanta Kumar Biswas
W.P. No.1706 (W) of 2011
Arjia Karim
v.
The State of West Bengal & Ors.
Mr Sougata Bhattacharyya and Mr Abdus Salam, advocates, for the petitioner. Mr Nisith Nandan Adhikari, Additional
Advocate-General, with Ms Abha Roy and Mr Abhra Mukherjee, advocates, for the State.
Heard on: February 10, 2011.
Judgment on: February 10, 2011.
The Court: - The petitioner in this art.226 petition dated January 27, 2011 is seeking the following principal
relief:
"a) A Writ of and/or in the nature of Mandamus do issue directing the Officer-In-
Charge and Investigating Officer, Labpur Police Station, respondent no.3 to forthwith
produce the petitioner before the Learned Judicial Magistrate to give her statement under Section 164 of the Code of Criminal Procedure in connection with Labpur Police- Station Case No. 12 of 2010 dated 31.01.2010 under Sections 147/148/149/302 of the Indian Penal Code read with Sections 25 and 27 Arms Act;"
The petitioner submitted a complaint in writing to the officer in charge of Labpur police station in the district Birbhum on January 31, 2010 at 11.25 a.m. that the 22 persons named therein had murdered her husband on January 30, 2010 at around 8.30 p.m. On the basis of the complaint Labpur P.S. Case No.12 of 2010 dated January 31, 2010 was registered under ss.147,148,149 and 302 of the Indian Penal Code read with s.9B of the Explosives Act, 1884 and ss.25 and 27 of the Arms Act, 1959.
Alleging that inspite of her application at p.24 sent to the officer in charge of the police station by post on January 21, 2011 the officer investigating the case has not taken any step to produce her before a Magistrate for recording her statement under s.164 of the Code of Criminal Procedure, 1973, the petitioner has brought this petition; and she wants to support her case by the facts stated in her representation at p.26 sent to the officer in charge of the police station by post earlier on January 4, 2011.
The question is whether a mandamus should be issued directing the investigating officer to produce the petitioner before a Magistrate for recording her statement under s.164 of the Code of Criminal Procedure, 1973.
Relying on Jogendra Nahak & Ors. v. State of Orissa & Ors., (2000)1 SCC 272, Mr Bhattacharyya appearing for the petitioner has argued that once by her letters at pp.24 and 26 the petitioner requested the investigating officer to produce her before a Magistrate for recording her statement under s.164 on the grounds that in the FIR written by someone and only signed by her, leaving the real accused, 22 innocent persons were named, the investigating officer, never recording any statement of the petitioner under s.161, incurred an obligation to produce the petitioner before a Magistrate.
Mr Adhikari, Additional Advocate-General, appearing for the State and producing the case diary maintained by the investigating officer has submitted that the case has its origin in a triple murder, and that the investigating officer has not found any reason to produce the petitioner before a Magistrate for recording her statement under s.164.
Section 164 provides that 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 the chapter containing the section or under any other law for the time being in force, or at any time afterwards before the commencement of the inquiry or trial: provided that no confession shall be recorded by a police officer on whom any power of a Magistrate has been conferred under any law for the time being in force.
No law conferred a right on the petitioner to call upon the investigating officer to produce her before a Magistrate so that her statement under s.164 might be recorded by the Magistrate.
Hence the request made in the application at p.24 sent by post on January 21, 2011 could not and did not create any obligation of the investigating officer to produce the petitioner before a Magistrate for recording her statement under s.164. In the absence of the petitioner's enforceable legal right and the investigating officer's corresponding enforceable legal duty, a mandamus cannot be issued directing the investigating officer to produce the petitioner before a Magistrate for recording her statement under s.164.
This position leads to the question whether this Court should direct the investigating officer to produce the petitioner before a Magistrate for recording her statement under s.164 in the interest of a fair investigation.
The case diary reveals the following facts. On January 31, 2010 the investigating officer recorded statements of 16 persons including the petitioner under s.161. They all supported the case stated in the FIR. On receipt of the letters at pp.24 and 26 he recorded the petitioner's further statement under s.161 on January 23, 2011 that since the accused had given her some money so that she might maintain herself and withdraw the case, it was necessary for her to make a statement under s.164 that the accused were not involved in the murder.
The case revealed by the case diary is a living example of the inconceivable abrupt turns an investigation may take. Hence it is quite possible that an order of the Writ Court sending the ongoing investigation to a particular direction wanted by a witness (even if he is the de facto complainant) may end the investigation in futility. In my opinion, at the instance of a witness direction of the investigation should not be fixed by exercising power under art.226. Instead of serving the purpose of a fair investigation, the order may spoil the investigation.
It is not possible for the Writ Court to decide whether the petitioner's allegation that the investigating officer has fabricated her s.161 statement and further statement is true. In my opinion, an attempt should not be made by the Writ Court to ascertain the correctness of such an allegation. I think it will be appropriate not to make any further comments on this issue especially when the investigation is in progress.
The decision relied on does not help the petitioner. On the contrary, in my opinion, it goes against the petitioner's case. Paragraph 24 of the report is quoted below.
"24. Thus, on a consideration of various aspects, we are disinclined to interpret 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 case. Of course, the said course will be without prejudice to their evidence being adduced during trial, if any of the parties requires it."
It is evident from the principles stated in the decision by their Lordships of the Supreme Court that statement of a person can be recorded by a Magistrate under s.164 of the Code of Criminal Procedure, 1973 only if the person is sponsored by the investigating agency. This shows the extent of freedom an investigating officer enjoys while investigating a case. The Writ Court is not to interfere in the matter simply because someone comes with an allegation that request for sponsoring him has been ignored by the investigating officer.
For these reasons, the petition is dismissed. No costs. Certified xerox.
(Jayanta Kumar Biswas, J.)