Magistrates have the power to record witness statements under Section 164 of the CrPC even after the police have submitted a charge sheet, as long as the inquiry or trial has not commenced.

N.K.Sinha, J.

1. This application under Sec. 482 of the Code of Criminal Procedure (hereinafter referred to as the Code) is for quashing the order dated 20.3. 1995 passed by the learned Chief Judicial Magistrate, Jamui whereby he rejected the petition filed by the petitioner for recording the statement of witness Md. Usman under Sec. 164 of the Code.

2. The petitioner is the informant of Sikandara ps. Case No. 192/92 under Sec. 364/ 34 of the Indian Penal Code instituted in connection with the kidnapping of his father Md. Usman. The Police, after investigation, submitted charge-sheet against the accused persons named in the First Information Report describing Md. Usman, the father of the petitioner informant as traceless. After submission of the charge-sheet, Md. Usman appeared in the village and when the police did not record his statement on the ground that charge-sheet had already been submitted, the informant filed an application before the learned Chief Judicial Magistrate for recording the statement of his father under Sec. 164 of the Code. The application was rejected by the impugned order dated 20.3.1995 and it is against the said order that this application has been filed.

3. It appears that the learned A.P.P. appearing for the State opposed the prayer for recording the statement of Md. Usman at the instance of the informant. It was opposed also on the ground that the case was fixed for commitment and if the paper of the petitioner was allowed at this stage, it will cause prejudice to the prosecution case. Learned Chief Judicial Magistrate rejected the application with the observation that it would not be just and proper to allow the prayer when the case is fixed for commitment.

4. Learned Counsel for the petitioner referred to the provisions of Sec. 164 of the Code and relied upon a decision of this Court in the case of Ram Khelawan Singh V/s. The State of Bihar, in support of his contention that the impugned order is illegal and without jurisdiction. Sec. 164(1) of the Code provides that any Metropolitan Magistrate or Judicial Magistrate may, whether or not he has jurisdiction in the case, record any confession or statement made to him in the course of an investigation under this Chapter or under any other law for the time being in force, or at any time afterwards before the commencement of the enquiry or the trial. Thus there is nothing in the Code to debar a Magistrate from recording the statement of a witness under Sec. 164 of the Code even if the police has submitted the charge-sheet and statement under Sec. 164 of the Code can be recorded either during the police investigation or at any time afterwards before the commencement of the enquiry or trial. This is in accordance with the provisions of Sub-sec. (1) of Sec. 164 of the Code.

5. From the impugned order, it is evident that investigation of the case had come to an end with the filing of the charge-sheet. The case was fixed for commitment and as mentioned in the impugned order, it was for this reason that the learned Chief Judicial Magistrate thought that it would not be just and proper to allow the prayer of the informant to record the statement of the victim. In my opinion, the learned Chief Judicial Magistrate had given a reason which was wholly untenable in law for refusing the prayer for recording the statement of the petitioners father who had been kidnapped. Under the provisions of Sec. 164 of the Code, such a statement of a witness can be recorded either in course of the investigation or even thereafter or at any time afterwards but before the commencement of the enquiry or trial. In other words a prayer for recording such a statement cannot be rejected on the ground that the investigation has come to an end. A prayer for recording such a statement can be refused only if after the investigation has been completed either the enquiry or the trial has commenced. In the instant case, the trial had not commenced because the case had not yet been c