Jogendra
Nahak & Ors Vs. State of Orissa & Ors [1999] INSC 241 (4 August 1999)
U.C.Banerjee,
K.T.Thomas, D.P.Mohapatro 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:
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:
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.
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 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.
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