BHIMA MALLIK Vs. STATE OF ORISSA

JUDGEMENT

(1.) Can statement be recorded under Sec. 164 of the Code of Criminal Procedure, 1973 (in short, the Cr.P.C.) by a Magistrate at the instance of informant is the sole question that falls for adjudication in this application.

(2.) Petitioner Bhima Mallik, who is the informant in G.R. Case No. 533 of 1993 pending in the Court of Judicial Magistrate, first class, Soro, made a motion before the learned Magistrate for recording his statement under Sec. 164, Cr. P.C. The prayer was refused by the learned Magistrate on the ground that (a) the Investigating Officer did not agree to such examination, and (b) a similar motion by Assistant Public Prosecutor was rejected earlier.

(3.) Learned counsel for the petitioner submitted that the course adopted by learned Magistrate in seeking agreement of the Investigating Officer is not in accordance with law. It is incumbent upon the Magistrate to record the statement when a motion is made by the informant. Learned counsel for State on the other hand submitted that power exercisable by learned Magistrate under Sec. 164, Cr. P.C. is discretionary, and unless the request of a person for recording his statement is for the ends of justice, in an appropriate case learned Magistrate can refuse to accept such prayer. In the case at hand Investigating Officer being of the view that recording of statement under Sec. 164, Cr. P.C. was unnecessary, learned Magistrate was justified in refusing the prayer, particularly when a similar prayer was rejected earlier.