The Magistrate has the discretion to refuse recording a witness's statement under Section 164 CrPC, even if the witness appears directly before the court. However, this discretion must be applied judiciously, considering the circumstances of each case and the potential for interference in the investigation.

P.K.Deb, J.

1. This is a petiton under Sec. 482, Cr.P.C. for quashing the order 14-6-1994 passed by the C.J.M. Lohardaga in Lohardaga P.S. Case No. 0067/94, whereby the prayer of the petitioner, an alleged vital witness to the occurrence, for recording his statement under Sec. 164, Cr.P.C. virtually refused when it was asked by the impugned order that the witness must come through Investigating Agency.

2. The question of law in this case involves a very point as to (1) whether statement under Sec. 164, Cr.P.C. can be recorded by a Magistrate on a direct request from the witness concerned, (2) whether the Magistrate is bound to do it or has got a discretion in the matter, (3) whether such statement is recorded without involving Investigating Agency in the matter would amount to interference in the investigation.

3. Mr. T.R. Bajaj, the learned Counsel was appointed amicus curie to help the Court in arriving at a just decision with his vast experience in both Bar and Bench.

4. A brief fact of the case is necessary to be mentioned for appreciating the points of law involved in the case. An information was lodged on 20-5-1994 at Lohardaga P.S. by the one Mohd. Seraj alleging murder of Mohd. Zubair against Mohd. Maqsood and six others. In the F.I.R. it was alleged that the informant Mohd. Seraj got information about killing of his brother from Md. Manir (petitioner) who according to informant had eye-witnessed the occurrence. Loharadaga police registered P.S. Case No. 0067 of 1994 (G.R. Case No. 175/94) under Sec. 302/34, I.P.C. The case is still pending for investigation.

5. Now the petitioner has appeared before the C.J.M. Lohardaga stating by filing a petition that he was in no way concerned with the occurrence. He had neither seen the occurrence not the made any statement before Investigating Officer about eye-witnessing the occurrence and that he had been falsely made a witness in the case and as such he desired to have his statement recorded under Section 164, Cr. P.C. On the body of the petition, learned C. J. M. passed the following order:

Heard. The petitioner be produced by the Investigating Officer for the purpose.

6. This order has been challenged in this petition under Sec. 482 Cr. P.C. It has been urged strenuously by the learned Counsel for petitioner that the C.J.M. erred in not recording the statement under Sec. 164, Cr. P.C. and direction given for production of the witness through Investigating Officer is bad in the eye of law, It has further been submitted that the Magistrate might have refused recording of statement under Sec. 164 Cr. P.C. but in that case he should give cogent reason for his refusal.

7. On the other hand, Mr. Bajaj, amicus curie has submitted that normally a statement of a witness if produced through Investigating Agency is recorded by Magistrate during the course of investigation under Sec. 164 Cr. P.C. and there is no specific law in recording the statement even if the witness appears voluntarily urging for recording his statement under Sec. 164, Cr.P.C. But Mr. Bajaj has also shown the other side of the picture by referring to Sections 157, 210 and 319 of the Cr. P.C. to the effect that if the Magistrate has unreserved discretion of recording statement of a witness appearing voluntarily in the court under Sec. 164, Cr. P.C., then the same may lead to interference of the court at the unfettered power of police to investigate the case and may had to various complications resulting in disastrous blockade in free investigation.

8. Sec. 164 appears in Chapter XII of the Cr. P.C. under the heading "Information to the Police and their powers to investigate" and empowers Judicial Magistrate to record confession of the accused in the earlier part of the section and in the latter part statement of witness in the course of investigation or at any time afterwards before the commencement of the inquiry or trial. Sub-sec. (5) specially mentions as to the manner and circumstances in which statement