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3. In short, an FIR was lodged on 23.03.2018 alleging commission of offence under Section 306 IPC. During the police investigation in that case, a statement of the applicant no. 1, is claimed to have been recorded by the Investigating Officer on 29.04.2018, under Section 161 Cr.P.C. Such statement has given rise to the dispute in the present case. The applicant no. 1 alleges her statement had been wrongly recorded by the police. On 23.6.2018, her mother filed an affidavit before the S.S.P., Aligarh making that allegation and basically sought to dilute the prosecution case, at this stage. No action appears to have taken on such application and the investigation remained pending. On 5.7.2018 the applicants then filed an application before the learned Court below to record the statement of applicant no. 1 under Section 164 Cr.P.C. Admittedly, the applicant had not been sponsored by the investigating agency and while no order had been passed on the aforesaid application, on 07.07.2018, the investigating agency submitted a charge sheet under Section 173(8) Cr.P.C. whereon cognizance was taken by the learned Court below on the same date without first passing any order on the application filed by the present applicants - under Section 164 Cr.P.C. Subsequently, on 27.07.2018, the impugned order has been passed by which the learned Court below has rejected the application filed by the applicant no. 1 to record her statement under section 164 Cr.P.C.

4. While rejecting that application, the learned Court below has observed since it had already taken cognizance on 07.07.2018 and therefore there remained no occasion to record a statement under Section 164 Cr.P.C.

5. Learned counsel for the applicants submits that the learned Court below has completely erred in rejecting the application to record the statement under Section 164 Cr.P.C. He would submit that the language of Section 164(1) is clear. A statement under Section 164 Cr.P.C. may be recorded at any time during investigation or at any time afterwards but before the commencement of the inquiry or trial. Insofar as other than taking cognizance no other step had been taken by the learned Magistrate as may establish that the inquiry or the trial had commenced, it remained open to the learned Court below to record the statement of the applicant no. 1 under Section 164 Cr.P.C.

11. As to the right claimed by the applicants, he submits, no person, in whatever capacity, can approach the learned Magistrate to get his statement recorded under Section 164 Cr.P.C., unless he is sponsored by the investigating agency, except a person under investigation, who may approach the Magistrate to get his confessional statement recorded or a person covered by provision of section 164(5A) Cr.P.C. Even in the case of a confessional statement, it has been submitted that a police report would necessarily have to be first called by the learned Magistrate before a such statement may be recorded under Section 164 Cr.P.C.

"1. The question raised by way of this petition is as to whether a witness, of his own has the right to approach a Magistrate to record his statement under Section 164 Cr.P.C.; and whether such Magistrate is under a legal obligation to record the statement of such witness under Section 164 Cr.P.C., when investigation in a criminal offence is going on?
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12. Considering the law laid down by the Hon'ble Supreme Court of India, and extracted hereinabove, it becomes clear that a Magistrate cannot take note of an individual approaching him directly with a prayer that his/ her statement may be recorded in connection with some occurrence involving a criminal offence. If liberty is given to anybody, and everybody, to approach a Magistrate for recording of statement under Section 164 Cr.P.C. in connection with an occurrence involving criminal offence, and if Magistrates are put under an obligation to record their statement, there is every likelihood that persons sponsored by accused/ culprits might be asked to approach court of the Magistrate for creating record/ evidence in defence with the purpose to help an accused/benefactor. If such a provision is made by way of giving liberty to a person unsponsored by the investigating agency to give statement under Section 164 Cr.P.C., entire investigation process would be derailed.