# Nafeesa v. The State of U.P. & Ors

- **Citation:** (2015) 2 ILRA 669
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2015-05-06
- **Case number:** Misc. Bench No. 3758 of 2015
- **Bench:** Ajai Lamba, Akhtar Husain Khan
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/nafeesa-v-the-state-of-u-p-ors-43271
- **Pages:** 5

## Headnote

Constitution
of
India,
Art.-226-Writ
Petition-seeking
direction-to
the
Magistrate-to record her statements under
Section 164 Cr.P.C.-as earlier statements
based upon pressure of her husband-held-if
individual permitted to approach directlyvery purpose of investigate frustrated-sole
domine of investigation agency-no such
direction
required-even
otherwise
petitioner will get opportunity to give
statements as prosecution witness before
Trail Court-petition dismissed.
Held: Para-13, 15, 19

## Text

2 All] Nafeesa Vs. The State of U.P. & Ors.
669
on bail in Case Crime No.184 of 2013
under Sections 147, 148, 149, 452, 302,
307
I.P.C.
and
7
Criminal
Law
Amendment Act, Police Station Dadari,
District Gautam Budh Nagar, on his
mother Kusum furnishing a personal bond
with two solvent sureties of his relatives
each in the like amount to the satisfaction
of the Juvenile Justice Board, Gautam
Budh Nagar with an undertaking that in
case the delinquent juvenile is released on
bail and is given in her custody she will
not create any situation which will bring
the delinquent juvenile into association
with any known criminal or expose to him
moral, physical and psychological danger
or any situation when the delinquent
juvenile may repeat the offence in
question
and
she
will
work
for
improvement of the delinquent juvenile.
27. Accordingly, the instant revision
is allowed.
28. Let a copy of this order be
certified to the Juvenile Justice Board,
Gautam Budh Nagar, at the earliest.
--------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 06.05.2015
BEFORE
THE HON'BLE AJAI LAMBA, J.
THE HON'BLE AKHTAR HUSAIN KHAN, J.
Misc. Bench No. 3758 of 2015
Nafeesa
 ...Petitioner
Versus
The State of U.P. & Ors.
...Respondents
Counsel for the Petitioner:
S.K. Sharma
Counsel for the Respondents:
Govt. Advocate
Constitution
of
India,
Art.-226-Writ
Petition-seeking
direction-to
the
Magistrate-to record her statements under
Section 164 Cr.P.C.-as earlier statements
based upon pressure of her husband-held-if
individual permitted to approach directlyvery purpose of investigate frustrated-sole
domine of investigation agency-no such
direction
required-even
otherwise
petitioner will get opportunity to give
statements as prosecution witness before
Trail Court-petition dismissed.
Held: Para-13, 15, 19
13.
In the opinion of this Court,
investigation is a searching enquiry for
ascertaining facts; detailed or careful
examination. Such Investigation is to be
conducted by an investigating agency. In
case persons individually are permitted to
create
"evidence
in
the
process
of
investigation", the process of investigation
would be interfered.
15. 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.
19. 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.
Case Law discussed:
(2000) 1 SCC 272.
(Delivered by Hon'ble Ajai Lamba, J.)
1. The question raised by way of this
petition is as to whether a witness, of his
own has the right to approach a
Magistrate to record his statement under
Section 164 Cr.P.C.; and whether such
Magistrate is under a legal obligation to
record the statement of such witness
under
Section
164
Cr.P.C.,
when
670
 INDIAN LAW REPORTS ALLAHABAD SERIES
investigation in a criminal offence is
going on?
2. The petition seeks issuance of a
writ in the nature of Mandamus, directing
the
investigating
agency
to
record
statement of the petitioner under Section
164 Cr.P.C. in open Court.
3. It has been pleaded in the petition
that the petitioner lodged false F.I.R. on
the basis of fabricated facts under
pressure from her husband, bearing Case
Crime No. 358 of 2014, under Sections
376 and 506 I.P.C., police station
Laharpur,
district
Sitapur
(First
Information Report dated 9th September,
2014, Annexure-1). It has further been
pleaded that the petitioner is an illiterate
person with no knowledge of law. The
petitioner did not know the accused.
4. In paras-9 to 11 of the petition, it
has been pleaded that under threat of her
husband and the investigating officer of
the case, the petitioner gave her statement
under Section 164 Cr.P.C. against Nasru,
son of Buddha.
5. The petitioner moved application
before the Additional Chief Judicial
Magistrate-I, Sitapur for recording her
statement a second time under Section
164 Cr.P.C., which has not been allowed.
Appropriate directions be issued so that
second statement of the prosecutrix is
recorded under Section 164 Cr.P.C.
6. None appears for the petitioner.
7. We have taken note of the
conceded position of the petitioner that
she is author of F.I.R., Annexure-1,
making allegation of commission of
serious offence, like rape. Subsequently,
during the course of investigation, on the
initiation of the investigating officer,
statement of the petitioner was recorded
under Section 164 Cr.P.C. The petitioner
supported
the
prosecution
case,
as
contained in the F.I.R. version.
8. At a later juncture, however, the
petitioner has developed the case that the
earlier statement given to the police under
Section 154 Cr.P.C. for registration of
F.I.R., and given as a witness under
Section 164 Cr.P.C. during the course of
investigation, were false, under pressure
and coercion of husband of the petitioner.
It is in this backdrop of facts that the
petitioner wants to give another statement
under Section 164 Cr.P.C. in regard to the
same incident, and not in addition,
however, giving a different version and
hue to the incident.
9. It appears that the statement has
not been recorded by the Magistrate
because the investigating officer did not
move an application for recording of such
statement.
10. By virtue of this petition, the
petitioner seeks a writ in the nature of
Mandamus, directing the Magistrate and
the
investigating
agency
to
record
statement of the petitioner under Section
164 Cr.P.C.
11.
Law in regard to recording of
statement under Section 164 Cr.P.C. has
been clarified by the Hon'ble Supreme Court
of India in the case of Jogendra Nahak and
others Vs. State of Orissa and others, (2000)
1 SCC 272 (paragraphs 19, 22, 23 and 24).
The following has been held :-
"19. In the scheme of the above
provisions there is no set or stage at which
2 All] Nafeesa Vs. The State of U.P. & Ors.
671
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's court
will be further crowded with a number of
such intending witness brought up at the
behest of accused persons.
22. 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.
23. On the other hand, if the 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
Magistrates 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.
24. 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."
12. Considering the law laid down
by the Hon'ble Supreme Court of India,
and extracted hereinabove, it becomes
clear that a Magistrate cannot take note of
an individual approaching him directly
with a prayer that his/ her statement may
be recorded in connection with some
occurrence involving a criminal offence.
If liberty is given to anybody, and
everybody, to approach a Magistrate for
recording of statement under Section 164
Cr.P.C. in connection with an occurrence
involving
criminal
offence,
and
if
672
 INDIAN LAW REPORTS ALLAHABAD SERIES
Magistrates are put under an obligation to
record their statement, there is every
likelihood that persons sponsored by
accused/ culprits might be asked to
approach court of the Magistrate for
creating record/ evidence in defence with
the purpose to help an accused/benefactor.
If such a provision is made by way of
giving liberty to a person unsponsored by
the investigating agency to give statement
under
Section
164
Cr.P.C.,
entire
investigation process would be derailed.
13. In the opinion of this Court,
investigation is a searching enquiry for
ascertaining facts; detailed or careful
examination. Such Investigation is to be
conducted by an investigating agency. In
case persons individually are permitted to
create "evidence in the process of
investigation",
the
process
of
investigation would be interfered.
14. 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".
15. 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.
16. 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.
17. 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.
18. 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.
19. The petitioner would have the
option to give statement in court when she
is produced as a prosecution witness. It
2 All]
 Smt. Manju Misra Vs. The State of U.P. & Ors.
673
would be for the Trial Court to consider
the statement (s) of the prosecutrix and
conclude whether offence has been
committed or not.
20. The question posed to the Court
is answered in the negative, for the
reasons recorded above.
21. Considering the law as noticed
above, as also the peculiar facts and
circumstances of the case, this Court
would not like to interfere in the process
of investigation by way of issuing
direction to the magistrate to record
statement of the petitioner under Section
164 Cr.P.C.
22. Petition is dismissed.
--------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 18.05.2015
BEFORE
THE HON'BLE AJAI LAMBA, J.
THE HON'BLE AKHTAR HUSAIN KHAN, J.
Misc. Bench No. 4153 of 2015
Smt. Manju Misra
...Petitioner
Versus
The State of U.P. & Ors.
...Respondents
Counsel for the Petitioner:
Gopal Trivedi, Lalit Kishore Pandey
Counsel for the Respondents:
Govt. Advocate, Arun Sinha, Riyaz Ahmad
Constitution of India, Art.-226-Mandamuspraying stay from arrest-offence under
Section 420, 467, 468, 504, 506, 471
IPC-as
in
sale
transaction-neither
beneficiary-nor
transferor-
evidence
being documentary nature no recovery
of any article required-nor custodian
interrogation requires-held-in view of
Smt.
Hema
Misra
case-if
evidence
submitted under Section 173-unto 10
days from notice no arrest-in case of
arrest conditional bail be given.
Held: Para-15
Keeping
in
view
the
facts
and
circumstances of the case, in context of
the law, as laid down by Hon'ble supreme
Court of India in Hema Mishra's case
(supra), as extracted above, we are of the
considered opinion that manifest injustice
would be caused if the petitioner is taken
in custody. The petitioner admittedly is not
a beneficiary in the transaction. The
evidence is documentary in nature. No
recovery is to be affected from the
petitioner. Custodial interrogation of the
petitioner
is
not
required
during
investigation proceedings.
Case Law discussed:
AIR 2014 SC 1066
(Delivered by Hon'ble Ajai Lamba, J.)
1. This petition seeks issuance of a
writ in the nature of certiorari quashing
First Information Report lodged as Case
Crime No.131 of 2015 under Sections
420, 504, 506, 467, 468, 471 I.P.C., P.S.
Bakshi Ka Talab, district Lucknow
(Annexure-1).
2.
In the second prayer, the petition
seeks issuance of a writ in the nature of
mandamus directing the Investigating Officer
not to arrest the petitioner in connection with
Case Crime No.131/2015 under Sections
420, 504, 506, 467, 468, 471 I.P.C., P.S.
Bakshi Ka Talab, district Lucknow .
3. Learned counsel appearing for the
petitioner states at the outset that the
petitioner does not press the petition in
regard to the first prayer, noted above.
The petitioner presses for grant of second
prayer in view of peculiar facts and