# Nandini Jadaun & Anr v. State of U.P. & Anr

- **Citation:** (2020) 1 ILRA 1667
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2018-09-19
- **Case number:** Application U/S 482 Cr.P.C. No. 29654 of 2018
- **Bench:** Saumitra Dayal Singh
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/nandini-jadaun-anr-v-state-of-u-p-anr-44350
- **Pages:** 9

## Headnote

Law-Code
of
Criminal
Procedure - Section 164 - Application
filed by the applicant no. 1 to record her
statement under Section 164 Cr.P.C.
rejected- As a rule, statement under
section 164 Cr.P.C. may be recorded only
of
a
person
sponsored
by
the
investigating agency-Only exception is
the confessional statement of an accused
person
under
investigation-Before
recording which the Magistrate may first
call for a police report and also seek
identification of such a person -No right
can be claimed by the applicant no. 1 to
get her statement recorded under Section
164 Cr.P.C. as admittedly, she had not
been sponsored by the investigating
agency. Also, from the perusal of the
affidavit of the mother of the applicant
no. 1, it appears that that the application
was filed only to dilute the statement of
the applicant no. 1, as recorded under
section 161 Cr.P.C.

Application u/s 482 Cr.Pc rejected. (E-3)

List of cases cited: -

## Text

1668 INDIAN LAW REPORTS ALLAHABAD SERIES
shall be considered and decided in view of
the settled law laid by this Court in the
case of Amrawati and another Vs. State
of U.P. reported in 2004 (57) ALR 290 as
well as judgement passed by Hon'ble Apex
Court reported in 2009 (3) ADJ 322 (SC)
Lal Kamlendra Pratap Singh Vs. State of
U.P. Till then no coercive measure shall
be taken against the applicant.

11. With the aforesaid directions, this
application is finally disposed of.
----------
(2020)1ILR 1667

ORIGINAL JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 19.09.2018

BEFORE
THE HON'BLE SAUMITRA DAYAL SINGH, J.

Application U/S 482 Cr.P.C. No. 29654 of 2018

Nandini Jadaun & Anr. ...Applicants
Versus
State of U.P. & Anr. ...Respondents

Counsel for the Applicants:
Sri Akhilesh Kumar Pandey, Sri Harsh
Sharma

Counsel for the Respondents:
A.G.A.

A.
Criminal
Law-Code
of
Criminal
Procedure - Section 164 - Application
filed by the applicant no. 1 to record her
statement under Section 164 Cr.P.C.
rejected- As a rule, statement under
section 164 Cr.P.C. may be recorded only
of
a
person
sponsored
by
the
investigating agency-Only exception is
the confessional statement of an accused
person
under
investigation-Before
recording which the Magistrate may first
call for a police report and also seek
identification of such a person -No right
can be claimed by the applicant no. 1 to
get her statement recorded under Section
164 Cr.P.C. as admittedly, she had not
been sponsored by the investigating
agency. Also, from the perusal of the
affidavit of the mother of the applicant
no. 1, it appears that that the application
was filed only to dilute the statement of
the applicant no. 1, as recorded under
section 161 Cr.P.C.

Application u/s 482 Cr.Pc rejected. (E-3)

List of cases cited: -

1. Reshma Khan Vs. St. of Jharkhand , Crl. Rev.
No. 999 of 2014 decided on 20.01.2015

2. Jogendra Nahak & Ors. Vs. St. of Orissa &
Ors, 2000 (1) SCC 272

3. Nafeesa Vs. St. of U.P. and Ors, 2015 (5)
ADJ 648

4. Raja Ram Vs. State, AIR 1966 All 192

5. Mahabir Singh Vs. St. of Har. ,2001 (7) SCC
148

6. Ajay Kumar Parmar Vs. St. of Raj. 2012 (12)
SCC 406

(Delivered by Hon'ble Saumitra Dayal
Singh, J.)

1. Heard Sri Harsh Sharma holding
brief of Shri. Akhilesh Kumar Pandey,
learned counsel for the applicants and Sri
Ankit Srivastava, learned A.G.A. for the
State.

2.

The
present
482
Cr.P.C.
application has been filed to quash the
order dated 27.07.2018 passed by the
Addl. Sessions Judge, Court No. 5,
Aligarh by which that court has rejected
the application filed by the applicant no. 1
to record her statement under Section 164
Cr.P.C. in Criminal Misc. Application No.
313 of 2018 that had been filed with
1 All. Nandini Jadaun & Anr.Vs. State of U.P. & Anr.
1669
reference to Case Crime No. 399 of 2018,
under Section- 306 IPC, Police Station-
Quarsi, District- Aligarh.

3. In short, an FIR was lodged on
23.03.2018
alleging
commission
of
offence under Section 306 IPC. During the
police investigation in that case, a
statement of the applicant no. 1, is claimed
to have been recorded by the Investigating
Officer on 29.04.2018, under Section 161
Cr.P.C. Such statement has given rise to
the dispute in the present case. The
applicant no. 1 alleges her statement had
been wrongly recorded by the police. On
23.6.2018, her mother filed an affidavit
before the S.S.P., Aligarh making that
allegation and basically sought to dilute
the prosecution case, at this stage. No
action appears to have taken on such
application and the investigation remained
pending. On 5.7.2018 the applicants then
filed an application before the learned
Court below to record the statement of
applicant no. 1 under Section 164 Cr.P.C.
Admittedly, the applicant had not been
sponsored by the investigating agency and
while no order had been passed on the
aforesaid application, on 07.07.2018, the
investigating agency submitted a charge
sheet
under
Section
173(8)
Cr.P.C.
whereon cognizance was taken by the
learned Court below on the same date
without first passing any order on the
application filed by the present applicants -
under Section 164 Cr.P.C. Subsequently,
on 27.07.2018, the impugned order has
been passed by which the learned Court
below has rejected the application filed by
the applicant no. 1 to record her statement
under section 164 Cr.P.C.

4. While rejecting that application,
the learned Court below has observed
since it had already taken cognizance on
07.07.2018 and therefore there remained
no occasion to record a statement under
Section 164 Cr.P.C.

5. Learned counsel for the applicants
submits that the learned Court below has
completely
erred
in
rejecting
the
application to record the statement under
Section 164 Cr.P.C. He would submit that
the language of Section 164(1) is clear. A
statement under Section 164 Cr.P.C. may
be
recorded
at
any
time
during
investigation or at any time afterwards but
before the commencement of the inquiry
or trial. Insofar as other than taking
cognizance no other step had been taken
by the learned Magistrate as may establish
that
the
inquiry
or
the
trial
had
commenced, it remained open to the
learned Court below to record the
statement of the applicant no. 1 under
Section 164 Cr.P.C.

6. Second, since the applicant is not a
stranger but a person who had been
questioned by the investigating agency,
her statement should have been recorded
under section 164 Cr.P.C. In this regard,
he further submitted that in the facts of the
present case, the police report had been
submitted under Section 173(8) Cr.P.C.
and not under Section 173(2) Cr.P.C. He
submits that on the own showing of the
investigating agency, the investigation was
pending. Therefore, undeniably the stage
for recording statement under Section 164
Cr.P.C. did survive.

7. As to the need for her statement to
be recorded under Section 164 Cr.P.C., it
has been submitted, since the police had
not
conducted
a
fair
and
proper
investigation inasmuch as the statement of
the applicant no. 1 who is a key witness
had been recorded in a manner so as to aid
1670 INDIAN LAW REPORTS ALLAHABAD SERIES
the accused persons, the applicant no. 1
was within her rights to approach the
learned Court below to get her statement
recorded under Section 164 Cr.P.C.

8. Learned counsel for the applicants
has relied on a decision of the Jharkhand
High Court in the case of Reshma Khan
Vs. State of Jharkhand passed in
Criminal Revision No. 999 of 2014
decided on 20.01.2015, wherein it has
been observed as below:

"4. .......On plain reading of the
provisions
it
is
apparent
that
the
Magistrate has the power to record the
statement of a witness under Section 164
(5) Cr.P.C. but the judicial discretion has
to be exercised on consideration of the
facts of the case.

5........

6........

7. In the instant case the
petitioner is the informant of the case. She
has categorically stated that her L.T.I. was
taken by the police when she was admitted
in the hospital and she never made the
statement which was converted by the
police as her fard bayaan. She has stated
that she approached the police to take her
statement when she learnt that a person
against whom she had no grievance has
been made an accused by the police after
getting her LTI on a blank paper. She even
wrote to the Superintendent of Police in
this matter but the investigating officer did
not record her statement.

8.....

9. It is well settled that when the
case is under investigation by the
investigating agency, the court's power is
restricted
in
interfering
with
the
investigation. However, as is abundantly
clear from the emergent factual scenario
the petitioner being the informant had
approached the court for recording her
statement being distressed and aggrieved
with the attitude of the investigating
agency.

In
such
circumstances
the
Magistrate should have exercised his
judicial discretion under the provision of
Section 164 Cr.P.C. before rejecting the
prayer of the petitioner."

(emphasis supplied)

9. Last, it has been submitted that no
prejudice may be caused, if such statement
was to be recorded in support of the
prosecution case and not in the aid of
defence. Here great emphasis was laid on
the fact that the applicant no. 1 is not a
stranger to the criminal case inasmuch as
her statement had been recorded by the
police itself and that therefore she had not
rushed to the learned Magistrate to set up a
false defence.

10. Sri Ankit Srivastava, learned
AGA has opposed the motion. He would
submit that once the investigation had
been concluded and cognizance of the
offence had been taken, there did not
survive any stage for the statement under
Section 164 Cr.P.C. to be recorded.

11. As to the right claimed by the
applicants, he submits, no person, in
whatever capacity, can approach the
learned Magistrate to get his statement
recorded under Section 164 Cr.P.C., unless
he is sponsored by the investigating
agency,
except
a
person
under
investigation, who may approach the
Magistrate
to
get
his
confessional
statement recorded or a person covered by
provision of section 164(5A) Cr.P.C. Even
in the case of a confessional statement, it
has been submitted that a police report
would necessarily have to be first called
1 All. Nandini Jadaun & Anr.Vs. State of U.P. & Anr.
1671
by the learned Magistrate before a such
statement may be recorded under Section
164 Cr.P.C.

12. As to the statement of any other
person who may want his statement to be
recorded under Section 164 Cr.P.C., it has
been submitted, he must be sponsored by
the investigating agency. Reliance has
been placed on a decision of the Supreme
Court in the case of Jogendra Nahak &
Others Vs. State of Orissa & Others
reported in 2000 (1) SCC 272 wherein it
has been observed as below:

"2. 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 CrPC (for short 'the Code').

............

.......

.....

20. In re C.W. Cases (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.

21. 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.

22. 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).

23. 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
1672 INDIAN LAW REPORTS ALLAHABAD SERIES
who may knock at the door of the court
with a request to record their statements
under Section 164 of the Code.

......

....

25. 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."

(emphasis
supplied)

13. Further, reliance has been placed
on a decision of this Court in the case of
Nafeesa Vs. State of U.P. and Others
reported in 2015 (5) ADJ 648 wherein
following the decision in the case of
Jogendra Nahak & Others Vs. State of
Orissa & Others (supra), it was observed
as under:

"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 investigation in
a criminal offence is going on?

.......

.....

...

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
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.

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."
(emphasis supplied)

14. Other than the confessional
statement by an accused person another
category of cases where a statement may be
recorded under section 164 Cr.P.C. is of
persons covered under sub-section 5A of that
section. Clearly, such is not the case before us.

15. Having considered the arguments
so advanced by learned counsel for the
1 All. Nandini Jadaun & Anr.Vs. State of U.P. & Anr.
1673
parties, it is first to be noted that a Full
Bench of this Court in the case of Raja
Ram Vs. State reported in AIR 1966 All
192 had the occasion to consider the
following question:

"Whether a confession recorded
by a Magistrate under Section 164 of the
Code of Criminal Procedure after the
police had completed its investigation and
submitted a charge-sheet, but before the
Magisterial enquiry has commenced, is
inadmissible in evidence."

16. The concurrent opinion of each of the
three judges (comprising the full bench), on the
above question was in the negative, and it was
held that a statement under Section 164 Cr.P.C.
may be recorded after the conclusion of
investigation upto before the commencement of
the inquiry or the trial. The third opinion
expressed by Justice D.P. Uniyal specifically
dealt with the point in time when an inquiry may
be treated to have commenced. That question
was answered in the following words:

"24. Under the provisions of the
Code the inquiry under Chapter XVIII
commences when the Magistrate takes
cognisance of the offence within the
meaning of Section 190 (1). After the
police had submitted a report under
Section 173 cognisance of the offence
could be taken by the Magistrate under
clause (b) of Subsection (1) of Section 190.
In the circumstances of this case the
Magistrate would have taken cognisance
of the offence when he applied his mind to
the contents of the police report for the
purpose of proceeding in the manner
indicated in Section 207-A of Chapter
XVIII of the Code.

25. Sub-section (3) of Section
207-A gives an indication as to the point of
time when the inquiry may be said to
commence. That sub-section reads thus:
"At the commencement of the inquiry the
Magistrate
shall
when
the
accused
appears or is brought before him, satisfy
himself that the documents referred to in
Section 173 have been furnished to the
accused, and if he finds that the accused
has
not
been
furnished
with
such
documents or any of them he shall cause
the same to be so furnished."

Sub-section
(4)
and
the
subsequent sub-sections provide how the
Magistrate should proceed to record
evidence produced on behalf of the
prosecution and empower the Magistrate
to summon such evidence as he may
consider necessary, and to call upon the
accused if necessary to make a statement
in regard to the accusation against him. It
would thus appear that the inquiry
commences only after the Magistrate is
satisfied that the documents referred to in
Section 173 have been supplied to the
accused
and
when
the
Magistrate
proceeds to take the evidence in support
of the prosecution case."

(emphasis
supplied)

17. That being the correct principle,
in the present case, it has not been
examined by the learned court below
whether the documents as required by
Section 173(4) Cr.P.C. had been supplied
to the accused person on any date prior to
27.07.2018. Thus, at present it cannot be
said whether the inquiry had or had not
commenced. To that extent, the reasoning
given by the learned Court below is
incomplete or inadequate. The correct
principle to be applied by the learned
Court below would have to be one as had
been laid down in the full bench of this
Court, noted above. However, a decision
on that point may not be necessary in the
1674 INDIAN LAW REPORTS ALLAHABAD SERIES
facts of the present case, in view of what
follows herein.

18. In so far as it is the admitted case
of the applicant no. 1 that she was not
seeking to get her confessional statement
recorded, then, irrespective of the stage of
the proceedings, her statement could not
have been recorded under section 164
Cr.P.C. since she had not been sponsored
by the investigating agency. Therefore, the
pre-condition to record such statement was
not satisfied. In this regard the decision of
the Supreme Court, in the case of
Jogendra Nahak & Others Vs. State of
Orissa & Others (supra) appears to
categorically and unequivocally prescribe -
only a person sponsored by the investing
agency can approach the Magistrate to get
his statement recorded under Section 164
Cr.P.C. The only exception that exists to
that inferred principle is the confessional
statement of an accused person under
investigation.

19. The submission that the said
principle
would
apply
only
against
strangers to the accusation who may rush
to the learned Magistrate only to create
false or frivolous evidence in support of
the accused persons and thus seek to
scuttle the investigation is unfounded.
From a plain reading of the decision, in
Jogendra Nahak & Others Vs. State of
Orissa & Others (supra), the clear
principle of law laid down does not create
or allow for such an exception to arise or
exist. To that extent the principle laid
down by the Supreme Court appears to be
absolute. It was followed by another
coordinate Bench of this Court in the case
of Nafeesa Vs. State of U.P. and Others
(supra) where the informant approached
the learned Magistrate on second occasion
to record her statement under Section 164
Cr.P.C., though such statement had also
been recorded earlier.

20. Then, the Supreme Court had the
occasion to consider its decision in
Jogendra Nahak & Others Vs. State of
Orissa & Others (supra), in the case of
Mahabir Singh Vs. State of Haryana
reported in 2001 (7) SCC 148. The latter
was a case where the learned Magistrate
had proceeded to record a statement under
Section 164 Cr.P.C., alleged to be a
confessional
statement,
without
prior
verification of the identity of that person.
In that context, it was observed as below:

"20. The sub-section makes it
clear that the power of the Magistrate to
record any confession or statement made
to him could be exercised only in the
course of investigation under Chapter XII
of the Code. The section is intended to take
care of confessional as well as nonconfessional statements. Confession could
be made only by one who is either an
accused or suspected to be an accused of a
crime. Sub-sections (2), (3) and (4) are
intended to cover confessions alone,
dehors
non-confessional
statements
whereas Sub-section (5) is intended to
cover such statements. A three Judge
Bench of this Court in Jogendra Nahak v.
State of Orissa, 1999 CriLJ 3976 has held
that so far as statements (other than
confession) are concerned they cannot be
recorded by a Magistrate unless the
person (who makes such statement) was
produced or sponsored by investigating
officer. But the Bench has distinguished
that aspect from the confession recording
for which the following observations have
been specifically made
(SCC p. 275, para 12)

"12. There can be no doubt that
a confession of the accused can be
1 All. Nandini Jadaun & Anr.Vs. State of U.P. & Anr.
1675
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 (SIC)against the accused.

21. We have no doubt that an
accused person can appear before a
Magistrate and it is not necessary that
such accused should be produced by the
police for recording the confession. But it
is necessary that such appearance must be
"in the course of an investigation" under
Chapter XII of the Code. If the Magistrate
does not know that he is concerned in a
case for which investigation has been
commenced under the provisions of
Chapter XII it is not permissible for him to
record the confession. If any person simply
barges into the Court and demands the
Magistrate to record his confession as he
has committed a cognizable offense, the
course open to the Magistrate is to inform
the police about it. The police in turn has
to take the steps envisaged in Chapter XII
of the Code. It may be possible for the
Magistrate to record a confession if he has
reason to believe that investigation has
commenced and that the person who
appeared before him demanding recording
of his confession is concerned in such
case. Otherwise the Court of a Magistrate
is not a place into which all and sundry
can gatecrash and demand the Magistrate
to record whatever he says as selfincriminatory."
(emphasis supplied)

21. No prior verification having been
made,
for
that
reason,
the
alleged
confessional statement recorded by the
Magistrate (in that case), was treated to be
an idle exercise of power, of no
consequence or legal effect.

22. Also, the Supreme Court in the
case of Ajay Kumar Parmar Vs. State of
Rajasthan reported in 2012 (12) SCC 406
reiterated the principle laid down in the
case of Jogendra Nahak & Others Vs.
State of Orissa & Others (supra) after
taking note of the distinction, on facts,
drawn by that Court to the aforesaid
judgment in the case of Mahabir Singh
Vs. State of Haryana (supra). In that case,
a statement of the informant/victim (being
a person covered under section 164 (5A)
Cr. P.C.), was recorded by the Magistrate,
upon
an
application
of
the
informant/victim though she had not been
sponsored/produced by the investigating
agency. By that statement, the informant
falsified the F.I.R. allegations. However, a
charge-sheet was filed. Relying on the
disputed statement (under Section 164
Cr.P.C.) of the victim, the Magistrate did
not take cognizance and acquitted the
accused person. It was observed by the
Supreme Court as below:

"11. A three-Judge Bench of this
Court in Jogendra Nahak v. State of
Orissa, held that sub-section (5) of Section
164, deals with the statement of a person,
other than the statement of an accused i.e.
a confession. Such a statement can be
recorded, only and only when, the person
making such statement is produced before
the Magistrate by the police. This Court
held that, in case such a course of action,
wherein such person is allowed to appear
before the Magistrate of his own volition,
is made permissible, and the doors of
court are opened to them to come as they
please, and if the Magistrate starts
recording all their statements, then too
many persons sponsored by culprits might
throng
before
the
portals
of
the
Magistrate's Courts, for the purpose of
creating record in advance to aid the said
1676 INDIAN LAW REPORTS ALLAHABAD SERIES
culprits. Such statements would be very
helpful to the accused to get bail and
discharge orders.

12.
The
said
judgment
in
Jogendra Nahak case was distinguished by
this Court in Mahabir Singh v. State of
Haryana, on facts, but the Court expressed
its anguish at the fact that the statement of
a person in the said case was recorded
under
Section
164
CrPC
by
the
Magistrate,
without
knowing
him
personally or without any attempt of
identification of the said person, by any
other person.

13. In view of the above, it is
evident that this case is squarely covered
by the aforesaid judgment of the threeJudge Bench in Jogendra Nahak, which
held that a person should be produced
before a Magistrate, by the police for
recording his statement under Section 164
CrPC. The Chief Judicial Magistrate,
Sirohi, who entertained the application
and
further
directed
the
Judicial
Magistrate, Sheoganj, to record the
statement of the prosecutrix, was not
known to the prosecutrix in the case and
the latter also recorded her statement,
without any attempt at identification, by
any court officer/lawyer/police or anybody
else."

(emphasis supplied)

23. Thus, in the first place, as a rule,
statement under section 164 Cr.P.C. may
be recorded only of a person sponsored by
the investigating agency. By way of an
exception to that rule, a confessional
statement (of person facing criminal
investigation), may be recorded by the
Magistrate, if he has reason to believe that
the person seeking to make such a
statement is an accused person in a
criminal investigation and further, such
person
seeks
to
get
recorded
his
confessional statement. Also, for that
purpose, the Magistrate may first call for a
police report and also seek identification
of such a person, before proceeding to
record his statement.

24. The Jharkhand High Court, in the
case of Reshma Khan Vs. State of
Jharkhand (supra) has clearly held
contrary to the view taken by the Supreme
Court in Jogendra Nahak & Others Vs.
State of Orissa & Others (supra). The
view taken therein had been disapproved
by the Supreme Court while dealing with a
similar view that had been then taken by
the Madras, Orissa and Kerala High
Courts.

25. In view of the above clear
position of law, no right can be claimed by
the present applicant no. 1 to get her
statement recorded under Section 164
Cr.P.C. as admittedly, she had not been
sponsored by the investigating agency.
Also, from the perusal of the affidavit of
the mother of the applicant no. 1, it
appears that that the application was filed
only to dilute the statement of the
applicant no. 1, as recorded under section
161 Cr.P.C.

26. Therefore, for the above reasons,
the order passed by the learned court
below does not warrant any interference,
though for reasons different from those
contained in the impugned order.

27. The present application lacks
merit and is accordingly dismissed.
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(2020)1ILR 1675

ORIGINAL JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 17.10.2019