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PETITIONER: JOGENDRA NAHAK & ORS.

       Vs.

RESPONDENT: STATE OF ORISSA & ORS.

DATE OF JUDGMENT:       04/08/1999

BENCH: U.C.Banerjee, K.T.Thomas, D.P.Mohapatro

JUDGMENT:

THOMAS, J.

     Leave granted.

     A  strange motion has been made before the High  Court of  Orissa  by four persons who are strangers to a  criminal case   for  direction  to  a  magistrate  to  record   their statements  under  Section  164  of  the  Code  of  Criminal Procedure  (for  short  the Code).  The High  Court  which initially  issued  such a direction later resiled  therefrom and  revoked  the order on a second thought and mulcted  the aforesaid  four persons with compensatory costs.  They filed this appeal by special leave.

     The  backdrop  of  the above order can  be  summarised thus:   In an incident which happened on 12-8-1997 at Janumi Village  (Ganjam  District, Orissa) one Balaram Mohanty  and his  son  sustained  injuries  and later  the  said  Mohanty succumbed  to  the  injuries.  F.I.R.  was  registered  with Purusottampur  Police Station on the information supplied by Bhagaban  Mohanty,  brother of the deceased.   One  Jagadish Murty and three others were arrayed as accused in the F.I.R. and  investigation was commenced thereon.  On completion  of the investigation final report was laid by the police before the  magistrate against the said accused persons.  According to   the   present  four   appellants,  though   they   were interrogated  by  the  Investigating Officer  under  Section 161of  the  Code their statements were not kept in the  Case Diary.

     The  four appellants filed a writ petition before  the High Court for directing the investigating officer to record their  statements  under Section 161 of the Code and  for  a further  direction  to  the magistrate concerned  to  record their  statements  under Section 164 of the Code.  The  High Court  permitted  the  appellants, as per  its  order  dated 22-12-1997, to file a petition before the magistrate for the purpose of recording their statements and the magistrate was directed  to  pass  appropriate  orders  on  such  petition. Pursuant   to  the  said  order   appellants  went  to   the magistrates  court  and  filed a  petition.   However,  the magistrate  declined  to record the statements.   Appellants again  moved the High Court and the following direction  was issued by a Division Bench on 24-3-1998:

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     We  direct  the trial court to comply with our  order dated  22-12-1997  by recording the statement under  Section 164 Cr.P.C."

     It  appears  that  the  magistrate,  pursuant  to  the aforesaid   direction,  recorded  the   statements  of   the appellants.   Therefore,  Bhagaban Mohanty  (the  informant) filed  an  application before the High Court to  recall  the order  dated 24-3-1998.  The Division Bench which passed the said  order heard both side and delivered the impugned order dismissing  the  writ petition filed by the  appellants  and also  ordering each of them to pay a cost of Rs.2,500/- for filing frivolous and vexatious petition.

     The   Division  Bench  held   that   appellants   have miserably  failed  to  prove any mala fide  action  of  the investigating  officer  so  as not to investigate  the  case properly  or  to  screen   any  offender.   Learned  Judges concluded thus:

     Therefore,  the anxiety of the petitioners to examine themselves,  is  not with a view to help  the  investigating agency  or  the prosecution but to favour a person  who  has been   charge-sheeted   as   an    accused.    Under    such circumstances,  the writ application is devoid of merit.  It thus  appears  that  petitioners  did   not  file  the  writ application  for securing fair justice but to play tricks so as  to get their statements under Section 161 and/or 164  of the Code recorded to help a charge-sheeted accused.

     The  argument addressed is that if the magistrate  has power to record a statement under Section 164 of the Code at the instance of a witness, this is not the stage to consider whether  witness  has  approached the magistrate  with  bona fides  or  not as that aspect should have been left  to  the trial  court to decide while considering the reliability  of his  testimony.   At  present  we may  decide  the  question whether  a  witness  can,  on his  own  motion,  approach  a magistrate with a request that his statement may be recorded under Section 164 of the Code.

     Learned  counsel  for the appellants pointed out  that Orissa  High  Court has on previous occasions  approved  the legal  position  that  a magistrate has wide  discretion  in recording  statements under Section 164 of the Code and that it  could  as  well be done at the instance of  the  witness himself  (vide  State of Orissa v.  A.P.  Das (1979  Cuttack Law Times 298) and Bhima v.  State {1994 (7) Orissa Criminal Reports 413}.

     Some  other High Courts have also taken the said  view (vide  Mohammad Sarfraz v.  Crown {1951 Criminal Law Journal (Lahore)  1425}.   In re C.W.  Casse (AIR 1948 Madras  489), Kunjukutty  v.   State of Kerala (1988 Criminal Law  Journal 504).  Counsel on both sides submitted that the question was not considered by this Court hitherto.

     Section  164  of  the  Code deals  with  recording  of confessions as well as statements.  Sub-section (1) empowers the magistrate to record them.  It reads thus:

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     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.

     The proviso to the sub-section and sub-sections (2) to (4) are not material for this purpose as they relate only to recording  of  confessions.   Sub-section (5)  says  that  a statement  of the witness shall be recorded in the manner in which evidence is recorded under law.

     There can be no doubt that a confession of the accused can  be recorded by a magistrate.  An accused is a  definite person  against  whom there would be an accusation  and  the magistrate  can  ascertain whether he is in fact an  accused person.   Such  a confession can be used against  the  maker thereof.  If it is a confessional statement, the prosecution has  to rely on it against the accused.  But that cannot  be said  of a person who is not an accused.  No such person can straightway  go to a magistrate and require him to record  a statement which he proposes to make.

     Section 164 falls within Chapter XII of the Code which has  the  appellation Information to the police  and  their power  to  investigate.  The first three provisions in  the Chapter  are  intended to deal with the steps which  precede the  registration of the FIR.  Those provisions include  the lodgment of First Information Statement regarding a crime.

     The  next  two  sections provide for the duty  of  the police  to send reports to the magistrate indicating whether the  police  would  proceed with the investigation  or  not. Section   159   empowers  the   magistrate  to   direct   an investigation  or  to hold an inquiry when he gets a  report from police in the manner indicated in Section 157(2) of the Code.

     Section  160  of  the Code deal with  the  powers  and duties  of  the  police   regarding  examination  (including interrogation)  of persons who are acquainted with the facts and  circumstances of the case and also regarding the use of such  statements  in the trial.  It is in the above  context that  Section  164  is  incorporated  in  this  Chapter  for recording of confessions and statements.

     By Sections 165 to 173, the Code prescribes provisions which  the  police have to adopt as follow up steps  in  the matter  of  investigation  and also the requirements  to  be complied with on conclusion of such investigation.

     Section  173 says that on completion of  investigation the  officer-in-charge  of  police station shall  forward  a report  to the magistrate, stating, inter alia, the names of the   persons  who  appear  to   be  acquainted   with   the circumstances  of the case.  Sub-section (5) of Section  173 requires  that  the  police  officer shall  forward  to  the magistrate  along with the said report (a) all documents  or relevant  extracts thereof on which the prosecution proposes to rely and (b) the statements recorded under section 161 of all  the persons whom the prosecution proposes to examine as its witnesses.

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     Even  when a further investigation, as indicated under sub-section  (8)  is conducted by the police, they  have  to comply  with all the requirements contained in the preceding sub-sections.

     In  the scheme of the above provisions there is no set or  stage at which a magistrate can take note of a  stranger individual  approaching him directly with a prayer that  his statement may be recorded in connection with some occurrence involving a criminal offence.  If a magistrate is obliged to record  the statements of all such persons who approach  him the  situation  would become anomalous and every  magistrate court  will  be  further  crowded  with  a  number  of  such intending  witness  brought  up  at the  behest  of  accused persons.

     In  re  C.W.  Casse (supra) Govinda Menon, J.  of  the Madras High Court (as he then was) expressed the view that:

     It  is  not necessary that the Magistrate  should  be moved  by  the  police  in  order that  he  might  record  a statement.   There may be instances 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.

     Nevertheless  learned  Single Judge sounded a note  of caution like this:

     But  such a thing will be very exceptional, as  there is always a discretion in the Magistrate to refuse to record the  statement.  Ordinarily, when a police officer  requests the  Magistrate to record the statement of a witness on oath under  Section  161  Cr.P.C.,  such a request  will  not  be refused  by the Magistrate.  But when a private party  seeks to  invoke  the  powers of a Magistrate under  Section  164, Cr.P.C.   the  Magistrate has got a very wide discretion  in acting or refusing to act.

     The  same approach was made by Single Judges in  State of  Orissa v.  A.P.  Das (supra) and in Kunjukutty v.  State of Kerala (supra).

     If  a magistrate has power to record statement of  any person  under  Section  164 of the Code,  even  without  the investigating  officer moving for it, then there is no  good reason  to  limit  the power to exceptional cases.   We  are unable  to  draw up a dividing line between witnesses  whose statements  are  liable to be recorded by the magistrate  on being  approached  for  that  purpose and those  not  to  be recorded.   The contention that there may be instances  when the  investigating  officer would be disinclined  to  record statements of willing witnesses and therefore such witnesses

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must  have  a remedy to have their version regarding a  case put  on  record,  is no answer to the question  whether  any intending witness can straightaway approach a magistrate for recording his statement under Section 164 of the Code.  Even for  such  witnesses provisions are available in  law,  e.g. the  accused can cite them as defence witnesses during trial or  the court can be requested to summon them under  Section 311  of  the  Code.   When such remedies  are  available  to witnesses  (who  may  be   sidelined  by  the  investigating officers)  we  do  not  find  any  special  reason  why  the magistrate  should  be burdened with the additional task  of recording  the statements of all and sundry who may knock at the  door  of  the  court with a  request  to  record  their statements under Section 164 of the Code.

     On  the other hand, if door is opened to such  persons to  get  in  and  if  the  magistrates  are  put  under  the obligation to record their statements, then too many persons sponsored by culprits might throng before the portals of the magistrate  courts  for  the purpose of creating  record  in advance  for  the purpose of helping the culprits.   In  the present  case, one of the arguments advanced by accused  for grant  of  bail to them was based on the statements  of  the four appellants recorded by the magistrate under Section 164 of  the Code .  It is not part of the investigation to  open up  such  a vista nor can such step be deemed necessary  for the administration of justice.

     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.

     The  last  contention that the High Court  should  not have  mulcted  the appellant with costs, as they  approached the  court  in view of the legal position set by the  Orissa High  Court  on earlier occasions.  Cost was ordered in  the discretion of the High Court, and it is not proper for us to interfere with such a discretion.

     Appeal is disposed of accordingly.