The Magistrate has the discretion to record the statement of a witness under Section 164 CrPC at the instance of the accused in exceptional circumstances, where refusal to record the statement would defeat the ends of justice.

JUDGMENT :

P.K. Mohanti, J. - The question involved in this criminal revision is whether at the instance of the accused the statement of a witness can be recorded u/s 164, Code of Criminal Procedure.

2. The opposite party is being prosecuted for an offence u/s 366. Indian Penal Code. The prosecution was started on the Fast Information Report lodged by Padmabati Debata, the mother of the victim girl. The report was lodged on 20-8-1978 at the Capital Police Station. The allegation in the report was that Dali @ Kamalini, the minor daughter of the informant, had been kidnapped by the opposite party for immoral purposes. On the same day the opposite party was arrested and the victim girl was rescued from a canteen run by the opposite party near the Rabindra Mandap. The victim girl was, however, not restored to her mother and was detained at the Police Station. On 24-8-1978 Padmabati filed a complaint petition against the Officer-in-charge of the Police Station alleging unlawful detention of her daughter at the Police Station and praying for her immediate production in Court. The victim girl was produced in Court on 28-8-1978. On that day the opposite party moved the S.D.J.M. for getting the statement of the girl recorded u/s 164. Code of Criminal Procedure on the allegation that during the period of her detention at the Police Station the girl was being tutored by the police to make false statements. The learned S.D.J.M. rejected the prayer on the ground that the accused has no locus standi to ask for recording of statement of a witness u/s 164. Code of Criminal Procedure.

3. The opposite party preferred a criminal revision which came up for hearing before the Additional Sessions Judge of Bhubaneswar. The learned Judge set aside the order of the S.D.J.M. and directed him to get the statement of the girl recorded u/s 164, Code of Criminal Procedure. It is against this order that the present criminal revision has been preferred by the State Government.

4. It is urged in this criminal revision that the statement of a witness cannot be recorded u/s 164, Code of Criminal Procedure at the instance of the accused.

5. The relevant portion of Section 164, Code of Criminal Procedure is extracted below:

Section 164(1). 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 inquiry or trial.

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6. On the plain language of the section, all that the Magistrate need satisfy himself is that the case is under investigation and that such investigation has not become fructified in an inquiry or trial. The section does not contemplate at whose instance the statement of a witness is to be recorded. There is nothing to prevent the Magistrate to record the statement of a witness at the instance of either the accused or the witness himself if it is felt necessary for the ends of justice. Ordinarily the Investigating Police Officer moves the Magistrate for recording the statement of a witness u/s 164, Code of Criminal Procedure. But under exceptional circumstances the accused may also move the Magistrate for recording the statement of a witness. 1 he Magistrate has a wide discretion in the matter. He may record the statement of a witness at the instance of the accused when he is satisfied that the circumstances are exceptional and refusal to record the statement would defeat the ends of justice.

7. The purpose of an investigation by the Police is to discover truth. If the investigation is carried on perfunctorily or mala fide the Magistrate may exercise his discussion in recording the statement of the witness at the instance of the accused or the witness himself.

8. The question was considered by a Division Bench of the Lahore High Court In the case of Muhammad Sarfraz Khan v. The Crown 52 Cri.L.J. 1425. wh