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Section 164 in The Indian Evidence Act, 1872
Section 164 in The Code Of Criminal Procedure, 1973
The Code Of Criminal Procedure, 1973
Section 161 in The Indian Evidence Act, 1872
Section 482 in The Code Of Criminal Procedure, 1973

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Patna High Court
Mohd. Manir vs State Of Bihar And Ors. on 13 September, 1994
Equivalent citations: 1994 (2) BLJR 1433
Author: P Deb
Bench: P Deb


1. This is a petiton under Section 482, Cr.P.C. for quashing the order 14-6-1994 passed by the C.J.M. Lohardaga in Lohardaga P.S. Case No. 0067/94, whereby the prayer of the petitioner, an alleged vital witness to the occurrence, for recording his statement under Section 164, Cr.P.C. virtually refused when it was asked by the impugned order that the witness must come through Investigating Agency.

2. The question of law in this case involves a very point as to (1) whether statement under Section 164, Cr.P.C. can be recorded by a Magistrate on a direct request from the witness concerned, (2) whether the Magistrate is bound to do it or has got a discretion in the matter, (3) whether such statement is recorded without involving Investigating Agency in the matter would amount to interference in the investigation.

3. Mr. T.R. Bajaj, the learned Counsel was appointed amicus curie to help the Court in arriving at a just decision with his vast experience in both Bar and Bench.

4. A brief fact of the case is necessary to be mentioned for appreciating the points of law involved in the case. An information was lodged on 20-5-1994 at Lohardaga P.S. by the one Mohd. Seraj alleging murder of Mohd. Zubair against Mohd. Maqsood and six others. In the F.I.R. it was alleged that the informant Mohd. Seraj got information about killing of his brother from Md. Manir (petitioner) who according to informant had eye-witnessed the occurrence. Loharadaga police registered P.S. Case No. 0067 of 1994 (G.R. Case No. 175/94) under Section 302/34, I.P.C. The case is still pending for investigation.

5. Now the petitioner has appeared before the C.J.M. Lohardaga stating by filing a petition that he was in no way concerned with the occurrence. He had neither seen the occurrence not the made any statement before Investigating Officer about eye-witnessing the occurrence and that he had been falsely made a witness in the case and as such he desired to have his statement recorded under Section 164, Cr. P.C. On the body of the petition, learned C. J. M. passed the following order:

Heard. The petitioner be produced by the Investigating Officer for the purpose.

6. This order has been challenged in this petition under Section 482 Cr. P.C. It has been urged strenuously by the learned Counsel for petitioner that the C.J.M. erred in not recording the statement under Section 164, Cr. P.C. and direction given for production of the witness through Investigating Officer is bad in the eye of law, It has further been submitted that the Magistrate might have refused recording of statement under Section 164 Cr. P.C. but in that case he should give cogent reason for his refusal.

7. On the other hand, Mr. Bajaj, amicus curie has submitted that normally a statement of a witness if produced through Investigating Agency is recorded by Magistrate during the course of investigation under Section 164 Cr. P.C. and there is no specific law in recording the statement even if the witness appears voluntarily urging for recording his statement under Section 164, Cr.P.C. But Mr. Bajaj has also shown the other side of the picture by referring to Sections 157, 210 and 319 of the Cr. P.C. to the effect that if the Magistrate has unreserved discretion of recording statement of a witness appearing voluntarily in the court under Section 164, Cr. P.C., then the same may lead to interference of the court at the unfettered power of police to investigate the case and may had to various complications resulting in disastrous blockade in free investigation.

8. Section 164 appears in Chapter XII of the Cr. P.C. under the heading "Information to the Police and their powers to investigate" and empowers Judicial Magistrate to record confession of the accused in the earlier part of the section and in the latter part statement of witness in the course of investigation or at any time afterwards before the commencement of the inquiry or trial. Sub-section (5) specially mentions as to the manner and circumstances in which statement is to be recorded which runs as follows ;__ (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 in the circumstances of the case ; and the Magistrate shall have power to administer oath to the person whose statement is so recorded.

Ordinarily, the statement of a witness is recorded by Magistrate when the witness is sent by the Investigating Agency for the purpose of pinning him down when it is feared that ho may resile afterwards or may be tampered with. Statement under Section 164, Cr. P.C. is not a substantive piece of evidence but can be used for the purpose of contradiction or corroboration as provided under Section 145 of the Evidence Act. The difference of statement before police under Section 161, Cr. P.C. and that on under Section 164 Cr.P.C. before the Magistrate is that the latter one is on oath and the witness if found afterwards be resiling from it may be proceed for giving false evidence easily. It has got no evidentiary value of its own. The effect of recording statement under Section 164, Cr. P.C. is primarily relating to the appraisment of evidence during the course of trial and it cannot be said that witness should necessarily be unreliable on the ground that his statement was previously recorded under Section 164, Cr.P.C.

9. From the very construction of this section using this word "may" infers that the Magistrate has got discretion to refuse recording of the statement of the witness whether produced or appears. But that discretion must be applied judiciously. This section does not debar recording statement of a witness where he approached directly to the court without being produced through police but limitation is to the effect that it must be "in the course of the investigation under this chapter or at any time afterwards before the commencement of the inquiry and trial". There is another reservation as per Sub-section (5) to the effect that it must be "in the opinion of the Magistrate, best fitted to the circumstances of the case."

10. On behalf of the petitioner, reference has been made to the decision of a Single Judge of our High Court reported in 1989 BBCJ 605, wherein it has been held that when the informant makes a prayer for recording statements of some witnesses under Section 164, Cr. P.C. when the investigation was going on then the Magistrate should not refuse this prayer. The citation is very short and does not reveal the circumstances of the case wherein such orders have been made. Definitely, the other side of the picture was not considered. The Magistrate has got definite power and authority to refuse recording statement of a witness even if other condition such as "Investigation going on or before the inquiry or trial" are satisfied if in his opinion the "same is not best fitted to the circumstances of the case". Even before the amendment of Cr. P.C. including the Section 164, Cr. P.C. in question Madras High Court had taken a rational view as far back in 1948. In Re C. W. cases AIR 1948 Madras 489, it was held that if a witness appears directly without being sent through police, the Magistrate may record his statement under Section 164, Cr. P.C. but such recording depends on sole discretion of the Magistrate. There is no unfettered duty on the Magistrate that he must record the statement of a witness under Section 164, Cr. P.C. but the same discretion must be applied on the facts and cricumstances of each case.

11. It is settled law that there should not be interference by the court of law in the field and stage of investigation of a ease which is in the exclusive jurisdiction of the Investigating Agency. There are every chances of such interference when a witness being in collusion with the accused try to get his statement recorded under Section 164, Cr. P.C. to tilt the mode of free investigation and shut up the doors of finding truth. In such case the Magistrate must apply his judicial mind to exercise his discretion regarding acceptance or refusal in recording the statement of the witness. On the other hand, there might be cases where unscrupulous Investigating Officer is trying to suppress reality or truth by not examining the main and vital witness of the occurrence or record their statement according to his whims. In that case recording of statement under Section 164, Cr. P.C. should never, be refused rather that would make the investigation more fruitful. There might be hundreds of instances or causes or reasons on either side some of which might be even beyond imagination. Therefore, it is difficult to formulate the circumstances in which there must be refusal or acceptance for the purpose of recording statement of a witness under Section 164, Cr.P.C.. Therefore, it emerges to the position that the Magistrate concerned should apply his judicial mind when a witness appears directly before him for the purpose of recording his statement under Section 164, Cr. P.C. to find out whether such recording which be just and proper and best fitted to the circumstance of the case or not. In doing so he may consult the case diary to find out the exact position and trend of investigation. But that discretion should always be for the upliftment of the criminal justice without being prejudiced by bias or whims,

12. So we may come to the following conclusion on the above discussion: (1) when witness/witnesses are produced by the Investigating Officer for recording statement under Section 164, Cr. P.C. the Magistrate may not have much hesitation to record his/their statement if on the circumstances, the same is fit, necessary and proper, (2) when the witness/witnesses themselves appear and pray for recording of his/their statement, the Magistrate must not readily accept the same but cautiously examine the position and circumstances i.e. degree of caution should be more in that case to assess the motive behind the same.

13. Now coming to the present case, the petitioner came forward with a prayer for recording his statement under Section 164, Cr.P.C. on the ground that he did not; report of the occurrence to the informant, but he was named so in the F. I. R. falsely and that he did not state before the Investigating Officer of eye-witnessing the occurrence. The learned Magistrate, by impugned order on the body of the petition directed the petitioner to come through the Investigating Officer for the purpose. The grievance of the petitioner is that the learned Magistrate should have either rejected the prayer or accepted the same but he should not get the same pending in that way when his complain is against the informant and the police (I.C.).

14. It is true that the Magistrate ought not to have kept the matter pending in this way and responsibility should not have been dis-shouldered. But the intention of the Magistrate could be found from the way the order was passed. He could perhaps read the intention/motive behind the prayer made so by the petitioner. If he had not seen the occurrence nor informed about the same to the informant nor he made any statement of eye-witness the occurrence to the I. O. then his petition to that effect might be sufficient enough which was asked be kept on record but by filing second petition, he wanted his statement to be recorded under Section 164, Cr. P.C. The statement before I. O. made by a witness under Section 161, Cr. P.C. is not required to be signed by the witness. If the petitioner has not stated that he had seen the occurrence before the I. O. then the matter ended there but then he prays again and again for getting his statement recorded under Section 164, Cr.P.C. for making a negative statement which pre-supposses that he must have statement before the Investigating Officer which he now wants to nullify for the reasons best known to him. Practically, Section 161, Cr.P.C. and that of Section 164 Cr. P.C. stand almost on the same footing in course of trial except that the statement under Section 164, Cr.P.C. is on oath. The intention of petitioner might be that if such statement in the negative way be recorded under Section 164, Cr. P.C., its advantage might be taken by the accused for the purpose of bail etc. under Section 438, Cr.P.C. or 437, Cr.P.C. , which might create a difficulty in getting the accused in the folds of the Investigating Officer for further revealation in finding truth or otherwise of the case, If there is no such intention of the petitioner and the petitioner wants only that he might not be prosecuted afterwards for false evidence, his petition to that effect is sufficient enough which has already been asked to be kept on record,

15. The learned Magistrate could have either accepted or rejected the petition after calling for the case diary and on perusal of the same. But, he cannot ask or make the petitioner bound to be produced through police nor the burden should be shifted to the I.O. for exercising discretion which the Magistrate himself has to apply.

16. Learned Counsel for the petitioner argued that the Magistrate shall have to give cogent reasons for rejecting the prayer. Every judicial order needs mentioning of reasons and the discretionary power given under this section has got reservations as already mentioned in the course of discussion and reasoning may follow automatically while applying discretion subject to limitation. Detailed reasoning is unwarranted,

17. In the result, the impugned order is quashed and the matter is sent back to the court below for proceeding according to law in the light of the observations made above.