PUBLIC PROSECUTOR A P Vs. K HANUMANTHA REDDY

JUDGEMENT

(1.) 1. This criminal revision ctse arises in the following manner : On 6th November, 1970 the husband of the 9th respondent in the case was killed She claims to have been in the company of the deceased at the time of the occurrence. She laid a complaint to the Police, who registered a case against some persons. Thereafter she approached the Judicial First Class Magistrate, Adoni and presented to him a petition to record her and some other persons statements under Sec. 164 Cr.P.C. The Magistrate said that he could not record the statements for two reasons. Firstly, there was no direction from the Sessions Judge. Kurnool that he could record statements from Alur Taluk; and secondly, he could not record Sec. 164 Cr.P.C. statements when required to do so by private persons. The matter was carried to the Sessions Court, Kurnool in Crl.M.P. No. 326 of 1970; By his order dated 19th November 1970, the learned Sessions Judge, following the decision In Re C.W Casse said that when a matter was still under investigation, a Magistrate may record Sec. 164 Cr.P.C. statements even if the area did not lie within his territorial jurisdiction. Further he observed that there was nothing preventing a witness to go to the Magistrate and request him to record his statement and the Magistrate to record such statement and transmit it to the Court where the enquiry or trial is to go on. If that is doe there is nothing wrong in the action taken by the Magistrate. So observing the learned Sesssions Judge closed the matter by stating that no further directions from the court was necessary as the Magistrate is competent to record the statement of the witnesses It is against this, the present Criminal Revision has been brought by the learned Public Prosecutor.

(2.) I do not see much difficulty in regard to the legal position relating to recording of Sec. 164 Cr.P.C. statements by a Magistrate at the instance of private parties, Sec, 164. Cr.P.C. empowers Magistrates enumerated therein to record any statement or confession made to him in the course of an investigation under the Chapter or under any other law for the time being in force or at any time afterwards before the commencement of enquiry or trial. So, any magistrate mentioned in Sec. 164(1) Cr.P.C. can record any statement or confession so long as the matter is in the course of investigation and before the commencement of the enquiry or trial. Sec. 164 CrPC. does not in terms preclude the recording of statements of private parties at their instance. Rule 30 of the Criminal Rules of Practice and Circular Orders 1966 prescribes the mode of recording statements of persons other than the accused. Sub-Rule (1 )states that Magistrates empowered under sec. 164 of the Code shall comply with the least practicable delay with the requisition in writing signed by a Police Officer not below the rank of an Officer- in charge of Police Station to record statements of any person other than the accused person.

(3.) Generally by speaking statements under Sec. 164 Cr.P.C.are recorded by Magistrates when a requisition comes from a Police Officer. But as I have pointed out, it is not necessary always that the Magistrate should be moved by the Police that he might record a statement under Sec. 164 Cr. P.C. Cases may be postulated where the police may not like to have statements of certain persons recorded. When that happens, there is nothing in Sec. 164 Cr, P.C. to prevent those persons from going to a Magistrate and requesting him to record their statements. But, such instances occur only very rarely. When a private party approaches the Magistrate to record his statement under Sec 164 Cr. P.C. the Magistrate has discretion either to record a statement or to refuse to record one. Such a discretion can be spelled out from the use of the word "may" in Section 164 (1) Cr. P.C. It is true that ordinarily when a Police officer makes a request, a Magistrate will not refuse to record a statement. When a private party seeks to invoke the provisions of bection 164 Cr. P.C. the Magistrate has a wide discretion in recording or refusing to record a statement. Of course, the other requirement of section 164 Cr. P.C viz., that the matter should still be in the course of an investigation and has not reached the stage of enquiry or trial, must be satisfied. The decision relied on by the learned Sessions Judge, viz. In re C. W. Cases (1) (A.I.R. 1949 Mad. 489) also lays down the same principle.