Madhya Pradesh High Court
Soniya Aswani vs The State Of Madhya Pradesh on 14 February, 2022
Author: Gurpal Singh Ahluwalia
Bench: Gurpal Singh Ahluwalia
1
THE HIGH COURT OF MADHYA PRADESH
M.Cr.C. No.45155/2021
Prosecutrix "X" (Name of prosecutrix 'xxxx' mentioned in cause-
title is masked) Vs. State of M.P.
Gwalior, Dated:14/02/2022
Shri R.K. Sharma, Senior Advocate with Shri M.K. Chaudhary
and Shri Anand Purohit, Advocate for applicant/complainant.
Shri R.K. Awasthi, Public Prosecutor for the State.
Shri Anil Mishra with Ms. Harshita Mishra, Advocate for
accused.
This application under Section 482 of Cr.P.C. has been filed
against the order dated 14/7/2021 passed by JMFC, Gwalior, by
which the application filed by the applicant for recording of her
statement under Section 164 of Cr.P.C. has been rejected on the
ground that it is not maintainable at the instance of the complainant.
2. The necessary facts for disposal of the present application in
short are that the applicant/complainant has lodged an FIR in Crime
No.168/2021 for offence under Sections 376, 376(1) and 506 of IPC
against the accused. Her statement under Section 164 of Cr.P.C. was
recorded. It appears that thereafter the police came to a conclusion
that no offence is made out. It is submitted by the counsel for the
State that the applicant thereafter represented to the Superintendent
of Police Gwalior and accordingly, further investigation is pending.
3. It appears that the applicant filed an application under Section
164 of Cr.P.C. for re-recording of her statement on the ground that at
the time of recording of her first statement under Section 164 of
Cr.P.C. she was under the pressure of Sub-Inspector Geeta Bhadoriya,
2
THE HIGH COURT OF MADHYA PRADESH
M.Cr.C. No.45155/2021
Prosecutrix "X" (Name of prosecutrix 'xxxx' mentioned in cause-
title is masked) Vs. State of M.P.
who had threatened that in case if the statement is not given by the
prosecutrix in accordance with her dictations, then she and her
husband would be falsely implicated and accordingly, she did not
disclose the correct facts before the Magistrate.
4. By the impugned order dated 14/7/2021 the said application
has been rejected by the JMFC, Gwalior by holding that in the light
of the judgment passed by the Supreme Court in the case of
Jogendra Nahak and others vs. State of Orissa and others
reported in AIR 1999 SC 2565, it is not possible to entertain her
application.
5. Challenging the order passed by the Court below, it is
submitted by the counsel for the applicant that there is nothing in
Section 164 of Cr.P.C. to show that the application for recording of a
statement under Section 164 of Cr.P.C. cannot be entertained, unless
and until it is sponsored by the Investigating Officer. Furthermore, it
is submitted that as per Regulation No.759 of Police Regulations, it is
clear that there is nothing to show that the statement under Section
164 of Cr.P.C. can be recorded only if it is sponsored by the
Investigating Agency.
6. Per contra, the application is vehemently opposed by the
counsel for the accused. It is submitted that the Allahabad High Court
in the case of Nafeesa Vs. State of U.P. and others decided on
6/5/2015in Misc. Bench No.3758/2015 has held that any application 3 THE HIGH COURT OF MADHYA PRADESH M.Cr.C. No.45155/2021 Prosecutrix "X" (Name of prosecutrix 'xxxx' mentioned in cause-
title is masked) Vs. State of M.P. for recording of statement under Section 164 of Cr.P.C., which is not sponsored by the investigating agency is not maintainable.
7. Heard learned counsel for the parties.
8. So far as Regulation No.759 of Police Regulations is concerned, it has no relevance so far as the question involved in the present case is concerned.
9. Section 164 of Cr.P.C. 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 4 THE HIGH COURT OF MADHYA PRADESH M.Cr.C. No.45155/2021 Prosecutrix "X" (Name of prosecutrix 'xxxx' mentioned in cause-
title is masked) Vs. State of M.P. 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.
(5A) (a) In cases punishable under section 354, section 354A, section 354B, section 354C, section 354D, sub-section (1) or sub-section (2) of section 376, section 376A, section 376B, section 376C, section 376D, section 376E or section 509 of the Indian Penal Code (45 of 1860), the Judicial Magistrate shall record the statement of the person against whom such offence has been committed in the manner prescribed in sub-section (5), as soon as the commission of the offence is brought to the notice of the police:
Provided that if the person making the statement is temporarily or permanently mentally or physically disabled, the Magistrate shall take the assistance of an interpreter or a special educator in recording the statement:
Provided further that if the person making the statement is temporarily or permanently mentally or physically disabled, the statement made by the person, with the assistance of an interpreter or a special educator, shall be videographed;
(b) A statement recorded under clause (a) of a person, who is temporarily or permanently mentally or physically disabled, shall be considered a statement in lieu of examination-in-chief, as 5 THE HIGH COURT OF MADHYA PRADESH M.Cr.C. No.45155/2021 Prosecutrix "X" (Name of prosecutrix 'xxxx' mentioned in cause-
title is masked) Vs. State of M.P. specified in section 137 of the Indian Evidence Act, 1872 (1 of 1872) such that the maker of the statement can be cross-examined on such statement, without the need for recording the same at the time of trial.
(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.
10. The question involved in the present case is no more res integra. The Supreme Court in the case of Jogendra Nahak (supra) has held as under:-
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.
11. Thus, it is clear that the statement under Section 164 of Cr.P.C.
can be recorded by the Magistrate only if it is sponsored by the Investigating Agency. Accordingly, no case is made out for entertaining this application.
12. The application fails and is hereby dismissed.
(G.S. Ahluwalia) Judge Arun* ARUN KUMAR MISHRA 2022.02.16 17:25:34 +05'30'