MAKHAN SINGH Vs. STATE OF M P

JUDGEMENT

(1.) In spite of directions given on 6.9.2010 neither case diary has been produced nor the Investigation Officer is present.

(2.) The petitioners have filed this petition under Section 397/401 read with Section 482 of Cr.P.C. against the order dated 30.8.2010 passed by J.M.F.C. Gwalior (Shri A.K. Pandey) in unregistered case in which an application filed by the applicants petitioners for recording theft statement under Section 164 of Cr.P.C. in Crime No. 228 of 2010 of Police Station Kampoo, Gwalior (M.P.) has been dismissed on the ground that it is the discretion of Police/Investigating Officer how investigation has to be done. The Court cannot direct the police by sending statements under Section 164 to consider them in the investigation. The only question involvedis that whether a witness can appear before the Magistrate directly, the Judicial Magistrate is duty bound to take his statement. Section 164 Cr.P.C. makes the provision for recording of confessional statements.

(3.) Hon'ble the Apex Court has held in the matter of Mahabir Singh v. State of Haryana, 2001 AIR(SC) 2503 that for recording the confession, the accused himself can appear before Magistrate he need not be produced by police in recording confession. The only condition is that the appearance of the accused must be "in the course of an investigation" under Chapter XII of Code. Witnesses is also same therefore, the learned judicial Magistrate has not exercised hejunsdictior vested in him in passing the impugned order he should have taken the statement of the applicant/petitioners who were before him because it is an admitted fact that investigation is going on in Crime No. 228/10 of Police Station Kampoo, Gwalior (M.P.).