An interesting question arises for consideration in this case. Petitioner wanted to have her statement record by a Magistrate under S. 164 of the Code of Criminal Procedure, for short the Code. For the said purpose she filed a petition before the Magistrate who rejected the same stating "it is not expedient to record her statement at this stage, as she can very well avail the opportunity to disclose the facts known to her, at the trial stage, if she desires." This order is under challenge.

2. S. 164(1) of the Code Reads:

"Any Metropolitan Magistrate or Judicial Magistrate May, whether or not he has jurisdiction in the case, recorded 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 inquiry or trial:

Provided that no confession shall be recorded by a police officer on whom any power of a Magistrate has been conferred under any law for the time being in force."

A reading of the above provision would show that it is competent for a Magistrate to record a statement even though the investigating police have not taken any init