Jharkhand High Court
Reshma Khan vs The State Of Jharkhand on 20 January, 2015
Author: Amitav K. Gupta
Bench: Amitav K. Gupta
IN THE HIGH COURT OF JHARKHAND AT RANCHI
Cr. Rev. No. 999 of 2014
Reshma Khan, D/o Late Sekh Mansoor Khan
Resident of Down Colony, Dugda
P.O & P.S. Dugda, Dist. Bokaro .... Petitioner
Versus
The State of Jharkhand .... Opposite Party
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CORAM: HON'BLE MR. JUSTICE AMITAV K. GUPTA For the Petitioner : Mr. Rahul Dev & Bhaskar Trivedi, For the State : A.P.P
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05/Dated: 20/01/2015 This criminal revision application has been directed against the order dated 28.8.2014, passed by Judicial Magistrate 1st Class, Bermo at Tenughat in Dugda P.S. Case No.22 of 2014, corresponding to G.R. No. 556 of 2014, whereby and whereunder the prayer for recording the statement of the informant under Section 164 Cr.P.C. has been rejected.
2. Learned counsel for the petitioner has submitted that it would be evident that the occurrence took place on 15.5.2014, whereafter fardbeyan was recorded on 16.5.2014 by D. Pandey, S.I of Chandrapura Police Station, at D.V.C. Hospital, Chandrapura. On the said fardbeyan L.T.I of the informant was taken. That the petitioner is the informant of the said case and she denied that the occurrence had taken place as narrated in fardbeyan. That she had repeatedly told the Police that she had met with an accident while she was cooking on the stove. That there is no medical evidence on record to show that she was subjected to assault or sexual assault. That when she came to know that the police after taking her L.T.I. has falsely implicated a person against whom she has no grievance then she visited the police station and even wrote a letter to the Superintendent of Police, Bokaro denying the involvement of th said person. The police did not record her statement or version correctly whereafter she approached the court below, for recording her statement under Section 164 Cr.P.C, but the court below without appreciating the facts of the case and the provision of Section 164 Cr.P.C. has rejected the application for recording her statement under Section 164 Cr.P.C. Learned counsel cited the decision in the case of Ram Khelawan Singh Vs. State of Bihar, 1990 (2) PLJR 269 and urged that in the said case it has been held that informant's prayer for recording the statement must be allowed even in a case where the investigation is going on. On the above grounds it is contended that the impugned order is fit to be set aside.
3. Learned counsel for the State has submitted that the Section 164 Cr.P.C. stipulates that any Metropolitan Magistrate or Judicial Magistrate, whether or not he has jurisdiction in the case, can record the statement and there is no bar under the Section for recording the statement under Section 164 Cr.P.C. of the informant.
4. Heard. On perusal of the impugned order it is apparent that the court below has rejected the prayer for recording the statement of the informant stating that the statement of a witness cannot be recorded at the instance of the informant/private party and has relied on the decisions in the case of Kumar Narayan Vs. State of Bihar, 2007 (1) PLJR 222 and the case of Hira Lal Yadav Vs. State of Jharkhand, 2005 (1) Crimes(JHC)
641. At this juncture it is relevant to refer to the provisions of Section 164 Cr.P.C. 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 law for the time being in force, or at any time afterwards before the commencement of the inquiry or trial:
[Provided that any confession or statement made under this sub-section may also be recorded by audio-video electronic means in the presence of the advocate of the person accused of an offence;
Provided further 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.] (2)The Magistrate shall, before recording any such confession, explain to the person making it that he is not bound to make a confession and that, if he does so, it may be used as evidence against him ; and the Magistrate shall not record any such confession unless, upon questioning the person making it, he has reason to believe that it is being made voluntarily. (3)If at any time before the confession is recorded, the person appearing before the Magistrate states that he is not willing to make the confession, the Magistrate shall not authorise the detention of such person in police custody.
(4)Any such confession shall be recorded in the manner provided in section 281 for recording the examination of an accused person and shall be signed by the person making the confession ; and the Magistrate shall make a memorandum at the foot of such record to the following effect: -
"I have explained to (name) that he is not bound to make a confession and that, if he does so, any confession he may make may be used as evidence against 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 made by him.
(Signed) A. B. Magistrate".
(5) Any statement (other than a confession) made under sub- section (1) shall be recorded in such manner hereinafter provided for the recording of evidence as is, in the opinion of the Magistrate, best fitted to the circumstances of the case ; and the Magistrate shall have power to administer oath to the person whose statement is so recorded. (6) The Magistrate recording a confession or statement under this section shall forward it to the Magistrate by whom the case is to be inquired into or tried.
On plain reading of the provisions it is apparent that the Magistrate has the power to record the statement of a witness under Section 164 (5) Cr.P.C. but the judicial discretion has to be exercised on consideration of the facts of the case.
5. The decision relied on by the court below were rendered as per the emergent facts of those cases. It is well settled that statement of witness under Section 164 Cr.P.C. can be recorded either during police investigation or at any time before the commencement of the enquiry or trial.
6. In the case of Hiralal Yadav (supra) two private strangers approached the Magistrate through a private lawyer for recording their statements under Section 164 Cr.P.C. which was allowed by the Magistrate and it was held that if the statement of all and sundry is allowed to be recorded by the Magistrate without it being sponsored by the Investigating agency the same cannot be allowed as their statements was never recorded under Section 161 Cr.P.C. by the police.
Likewise decision in the case of Kumar Narayan Vs. State of Bihar (supra) is based on the facts of that particular case.
7. In the instant case the petitioner is the informant of the case. She has categorically stated that her L.T.I. was taken by the police when she was admitted in the hospital and she never made the statement which was converted by the police as her fardbeyan. She has stated that she approached the police to take her statement when she learnt that a person against whom she had no grievance has been made an accused by the police after getting her LTI on a blank paper. She even wrote to the Superintendent of Police in this matter but the investigating officer did not record her statement.
8. The petitioner is the person aggrieved or victim. She is not a stranger and she is aggrieved with the conduct of the investigating officer who refused to record her statement. Her plea to the Superintendent of the Police went unheard accordingly she took umbrage of the court and approached the court to record her statement under Section 164 Cr.P.C.
9. It is well settled that when the case is under investigation by the investigating agency, the court's power is restricted in interfering with the investigation. However, as is abundantly clear from the emergent factual scenario the petitioner being the informant had approached the court for recording her statement being distressed and aggrieved with the attitude of the investigating agency.
In such circumstances the Magistrate should have exercised his judicial discretion under the provision of Section 164 Cr.P.C. before rejecting the prayer of the petitioner.
10. In view of the discussion made above, it is held that the impugned order is not justified and is hereby set aside. The learned Magistrate is directed to record the statement of the petitioner/informant in accordance to the procedure prescribed under the provision of Section 164 Cr.P.C.
11. With the aforesaid direction the revision application stands allowed.
(AMITAV K. GUPTA, J.) Fahim/