JOGENDRA NAHAK AND ORS. versus STATE OF ORISSA AND ORS.

Citation: [1999] SUPP. 1 S.C.R. 39 · Decided: 04-08-1999 · Supreme Court of India · Bench: K.T. THOMAS · Disposal: Dismissed

Judgment (excerpt)

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.. 
JOGENDRA NAHAK AND QRS. 
v. 
ST A TE OF ORIS SA AND ORS. 
AUGUST 4, 1999 
A 
[K.T. THOMAS, D.P.'MOHAPATRA AND U.C. BANERJEE, JJ.J 
B 
Criminal Procedure Code, 1973-Section 164-Scope of-Pefsonl 
witness apprdaching magistrate directly for recording statement-
lnvestigating Agency not moving the Magistrate for recording statement of C 
such a person-Power of Magistrate to record statement of such a person-:-
Held, Section 164(1) of the Code cannot be interpreted as empowering a 
Magistrate to record the statement of a person unsponsored by the investigating 
agency. 
Appellants filed writ petition before the High Court for directing the D 
investigating officer to record their statements, in respect of an incident, 
under Section 161 of the Criminal Procedure Code and for a further direction 
to the Magistrate concerned to record their statements under Section 164 
of the Code. Pursuant to a direction issued by the High Court in t~e writ 
petition, thb Magistrate recorded the statements of the appfllants. 
Subsequently, the informant, filed an application to recall the ~rder i~ which E 
the said direction was issued, and the Division Bench on the said' appJication 
dismissed th~· writ petition filed by the appellants and disalluwed the 
statements ofthe appellants to remain on the record of the case. The Division 
' ' 
Bench held that the appellants miserably failed to prove any malajid~ action 
of the investigating officer, and that the appellants filed the petition ;ltot for F 
securing fair justice but to help the charge-sheeted accused, and mulqed the ' 
appellants with costs. Against the order of the High Court dismissing their 
writ petition~ the appellants have filed the present appeal. 
' 
The app~llants contended that a Magistrate has wide discreHon in 
recording statements under Section 164 of the Code and that it could be done G 
at the instance of the witness himself; and that the investigating officer 
· would in some instances be disinclined to record statements of willing 
witnesses and such witnesses must have a remedy to have their version 
regarding a case put on record. 
Dismissing the appeal, the Court 
39 
H 
40 
SUPREME COURT REPORTS [1999] SUPP. I S.C.R. 
A 
HELD: I. There can be no doubt that a confession of the accused can 
be 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 
B on it against the accused. But the same cannot be said of a person who is 
not an accused. No such person can straightaway go to a Magistrate and 
require him to record a statement which he proposesfo make. 
[43-G-H; 44-A] 
2. In the scheme of the provisions of Chapter XII of the Code there 
C -is no set or stage at which 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 
court will be further crowded with a number of such intending witnesses 
D brought up at the behest of accused persons for the purpose of creating 
record in advance for the purpose of helping such persons.(44-G-H; 45-A] 
3. If a Magistrate has power to record statement of any pNson under 
Section 164 of the Code, even without the investigating officer moving for 
E it, then there is no good reason to limit the power to exceptional cases. A 
dividing line cannot be drawn 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 
F 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 
G Section 311 of the Code. 

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