JOGENDRA NAHAK v. STATE OF ORISSA
- Bench: Justices U.C.Banerjee, K.T.Thomas, D.P.Mohapatro
- Appellant: Jogendra Nahak
- Respondent: State of Orissa & Others
Issue
I. Whether magistrate can record statements u/s. 164 without IO.
Facts
- In an incident which happened on 12-8-1997 at Janumi Village (Ganjam District, Orissa), Balaram Mohanty and his son sustained injuries and Balaram Mohanty succumbed to his injuries. F.I.R. was registered with Purusottampur Police Station on the information supplied by Bhagaban Mohanty, brother of deceased.
- 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. According to the present four appellants, though they were interrogated by the Investigating Officer (IO) 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 IO 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.
- 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 IO so as not to investigate the case properly or to screen any offender. Post this, Appellants moved an Special Leave Petition in Apex Court.
Appellant’s Contention
If the magistrate has power to record a statement under Section 164 off 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.
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 it could as well be done at the instance of the witness himself.
Respondent’s Contention
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 accused. Under such circumstances, the writ application is devoid of merit. It thus appears that Appellants 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.
Judgment
All and sundry cannot approach the magistrate for recording of their statement u/s 164 and any witness, unsponsored by the IO/prosecution, cannot seek to get his examination recorded u/s 164 Cr.P.C.
Relevant Paragraphs
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 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.
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