A Magistrate does not have the power to record the statement of a person unsponsored by the investigating agency under Section 164 of Cr.P.C.

1. Heard.

2. Petitioner has filed this application for quashing order dated 8.12.2004 passed by Chief Judicial Magistrate, Munger in Kharagpur Police Station Case No. 55 of 2004 allowing the petition dated 23.11.2004 filed by informant for recording statements of some witnesses under Section 164 of Criminal Procedure Code (In short "Cr. PC").

3. Learned counsel of petitioner submits that in Kharagpur Police Station Case No. 55 of 2004, police, after investigation, submitted charge-sheet under Sections 144, 341, 323 and 504 of IPC and informant on 23.11.2004 fiied a petition for examination under Section 164 of Cr.P.C. of some witnesses named in the petition on the ground that those witnesses were not examined by Investigating Officer and, thereafter, on 8.12.2004, the learned Chief Judicial Magistrate, Munger took cognizance of the case and also allowed the aforesaid petition of informant. It is submitted on behalf of petitioner that the question of examination of some witnesses under Section 164 of Cr.P.C. was not raised by prosecution, therefore, the impugned order is not proper and it must be quashed. From the perusal of impugned order, I find that the Court below after relying on a decision of this Court in the case of Md. Nezam V/s. State of Bihar, [1995(2) Eastern India Crl. Cases 673 (Pat.)j, allowed the prayer of informant for recording statements of some witnesses under Section 164 of Cr.P.C. The learned counsel of petitioner has relied upon a decision of the Supreme Court in the case of Jogendra Nahak & Ors. V/s. State of Orissa & Ors., AIR 1999 Supreme Court 2565 (Also reported in Cr. L.J. 3976) where it has been field as follows:

"If a Magistrate has power to record statement of any person under Section 164 of the Code, even without the investigating officer moving for it, then there is no good reason to limit the power to exceptional case. We are unable to draw up a dividing line 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 version regarding a case put on record, is not answer to the question whether any intending witness can straightway 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 Section 311 of the Code. When such remedies are available to witnesses (who may be sidelined by the investigating officers) we do not find any special reason why the Magistrate should be burdened with the additional task of recording the statements of all and sundry who may knock at the door of the Court with a request to record their statements under Section 164 of the Code."

4. In this case, it was further held that:

"Thus, on a consideration of various aspects, we are disinclined to interpret Section 164(1) of the Code as empowering a Magistrate to record the statement of a person unsponsored by the investigating agency. The High Court has rightly disallowed the statements of the four appellants to remain on record in this case. Of course, the said course will be without prejudice to their evidence being adduced during trial, if any of the parties requires it."

5. In the result, this application is allowed and the order dated 8.12.2004 passed by Chief Judicial Magistrate, Munger in Kharagpur Police Station Case No. 55 of 2004 allowing the prayer of informant for recording statements under Section 164 of Cr.P.C. of witnesses named therein is hereby quashed.

6. It goes without saying that if statements of some witnesses as per prayer of informant have been recorded, the same will not be considered and will be ignored.