Complainant can insist magistrate to record her statement second time u/s 164 of CRPC

Complainant can insist magistrate to record her statement second time u/s 164 of CRPC

Nafeesa Vs State of UP and Ors

Alahabad HC, Lucknow Bench

06/05/2015

Misc. Bench No. 3758 of 2015

About/from the judgment:

It is the duty of the investigating agency to conduct investigation. When it is felt relevant and necessary, the investigating officer makes an application to the magistrate to record statement of a witness under Section 164, Cr.P.C. Such statement becomes a part of investigation record under Chapter XII of the Code of Criminal Procedure. This process would surely be interfered, if persons on their own claim a right to give statement under Section 164, Cr.P.C. Surely such a statement cannot be construed in pursuance of investigation by the concerned investigating agency. 'Investigation' has been defined under Section 2(h) as follows:

 

"2(h) "investigation" includes all the proceedings under this Code for the collection of evidence conducted by a police officer or by any person (other than a Magistrate) who is authorised by a Magistrate in this behalf".

 

14. Considering the above it becomes illusory and apparent that only a police officer or an investigator can sponsor a witness to a Magistrate for recording of statement under Section 164, Cr.P.C.

 

15. Considering the averments made in the petition, we are of the considered opinion that while exercising extraordinary writ jurisdiction, such direction, as sought in the petition, cannot be given. The investigating agency is required to proceed as per law. Ordinarily, a direction is not required to be given to the investigating agency to investigate a case in a particular manner. A witness can be produced before the Magistrate for recording his/her statement under Section 164, Cr.P.C. only by the investigating officer. Apparently, the petitioner has already given her statement once under Section 164, Cr.P.C., on the asking of the investigating agency.

 

16. From the pleadings in the petition, it has become evident that the petitioner concedes that she knowingly gave a false statement. Clearly, the petitioner can be proceeded against for giving a statement that is false to her knowledge and belief.

 

17. At this stage, in these proceedings, it cannot even be deduced whether the earlier version given by the petitioner was truthful or the case set up in this petition is truthful.

 

18. The petitioner would have the option to give statement in court when she is produced as a prosecution witness. It would be for the Trial Court to consider the statement (s) of the prosecutrix and conclude whether offence has been committed or not.

 

19. The question posed to the Court is answered in the negative, for the reasons recorded above.

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