A Magistrate does not have the power to record the statement of a person unsponsored by the Investigating Agency.

JUDGMENT :

Sanjeev Prakash Sharma, J.

1. The present petition has been filed by the petitioner-victim, who had lodged the complaint against the accused, which was registered as an FIR under Section 156(3) Cr.P.C. and sent for investigation to the Investigating Officer. An FIR was registered under Sections 406, 420, 167, 467, 468, 471 & 120-B IPC wherein an allegation has been levelled of the accused having committed an embezzlement of a huge sum of Rs. 6,07,29,306/-.

2. The grievance of the petitioner-victim is that when he appeared before the Investigating Officer, his statement was wrongfully recorded under Section 161 Cr.P.C. by the Investigating Officer and he, therefore, moved an application to the concerned Magistrate seeking liberty to give his statement under Section 164 Cr.P.C. on oath so that the correct facts may come out before the court. It is his submission that the Investigating Officer was trying to help the accused and was therefore not recording the statement of the petitioner correctly.

3. Learned counsel points out that the statement was recorded by the Investigating Officer on 9.7.2020 and when the petitioner learnt that the statement has been wrongfully recorded, he immediately moved an application on the next date before the concerned Magistrate.

4. The petitioner's counsel submits that the learned Magistrate has rejected application of the petitioner relying on the law as laid down by the Supreme Court in the case of Jogendra Nahak & Others Versus State of Orissa & Others reported in 2000 (1) SCC 272 wherein the Supreme Court has observed that the statement of witnesses cannot be directly recorded by the Magistrate as it would open a pandora's box and it should be only when an application is moved by the concerned Investigating Officer that the statement can be recorded of a witness under Section 164 Cr.P.C. Learned counsel for the petitioner also submits that the facts of the case in Jogendra Nahak & Others (supra) were totally different from the facts of the present case. In the said case, the witness had come up claiming their statements to be recorded under Section 164 Cr.P.C. in support of the accused.

5. It was stated that the said witnesses who wanted to bring the correct facts on record before the Investigating Officer, were not allowed to make their statements and therefore they approached the High Court and the matter traveled to the Supreme Court and the Supreme Court has observed that such witnesses can always be examined by calling them in defence by the accused or by moving application under Section 311 Cr.P.C.

6. However, the facts of the present case are totally different and learned counsel submits that in the present case, it is the victim i.e. complainant, who is seeking his correct statement to be recorded and has alleged that the Investigating Officer has wrongfully recorded his statement.

7. Learned counsel also submits that the provisions of Section 163(2) Cr.P.C. allow a person to make his submission on his freewill independent of the statement made before the Investigating Officer and such provision is only subject to the conditions for recording confessional statement as under Section 164(4) Cr.P.C. Learned counsel submits that the said aspect has not been considered in the judgment of the Jogendra Nahak & Others (supra) and therefore, the facts of the present case are distinguishable from that before the Hon'ble Apex Court.

8. He therefore prays that in the present case the directions ought to be issued to the learned Magistrate to record the statement of the petitioner so that the facts which have been mentioned in the FIR are supported by the petitioner through his statement made on oath under Section 164 Cr.P.C. It would also be in the interest of justice that the correct facts are therefore come before the court to bring home conviction to the concerned accused.

9. I have considered the submissions.

10. Chapter XII of Cr.P.C. lays down the provisions relating to information to the Po