By the Court.—The question raised by way of this petition is as to whether a witness, of his own has the right to approach a Magistrate to record his statement under Section 164 Cr.P.C.; and whether such Magistrate is under a legal obligation to record the statement of such witness under Section 164 Cr.P.C., when investigation in a criminal offence is going on?

2. The petition seeks issuance of a writ in the nature of Mandamus, directing the investigating agency to record statement of the petitioner under Section 164 Cr.P.C. in open Court.

3. It has been pleaded in the petition that the petitioner lodged false F.I.R. on the basis of fabricated facts under pressure from her husband, bearing Case Crime No. 358 of 2014, under Sections 376 and 506 I.P.C., police station Laharpur, district Sitapur (First Information Report dated 9th September, 2014, Annexure-1). It has further been pleaded that the petitioner is an illiterate person with no knowledge of law. The petitioner did not know the accused.

4. In paras-9 to 11 of the petition, it has been pleaded that under threat of her husband and the investigating officer of the case, the petitioner gave her statement under Section 164 Cr.P.C. against Nasru, son of Buddha.

5. The petitioner moved application before the Additional Chief Judicial Magistrate-I, Sitapur for recording her statement a second time under Section 164 Cr.P.C., which has not been allowed. Appropriate directions be issued so that second statement of the prosecutrix is recorded under Section 164 Cr.P.C.

6. None appears for the petitioner.

7. We have taken note of the conceded position of the petitioner that she is author of F.I.R., Annexure-1, making allegation of commission of serious offence, like rape. Subsequently, during the course of investigation, on the initiation of the investigating officer, statement of the petitioner was recorded under Section 164 Cr.P.C. The petitioner supported the prosecution case, as contained in the F.I.R. version.

8. At a later juncture, however, the petitioner has developed the case that the earlier statement given to the police under Section 154 Cr.P.C. for registration of F.I.R., and given as a witness under Section 164 Cr.P.C. during the course of investigation, were false, under pressure and coercion of husband of the petitioner. It is in this backdrop of facts that the petitioner wants to give another statement under Section 164 Cr.P.C. in regard to the same incident, and not in addition, however, giving a different version and hue to the incident.

9. It appears that the statement has not been recorded by the Magistrate because the investigating officer did not move an application for recording of such statement.

10. By virtue of this petition, the petitioner seeks a writ in the nature of Mandamus, directing the Magistrate and the investigating agency to record statement of the petitioner under Section 164 Cr.P.C.

11. Law in regard to recording of statement under Section 164 Cr.P.C. has been clarified by the Hon’ble Supreme Court of India in the case of Jogendra Nahak and others v. State of Orissa and others, (2000) 1 SCC 272 (paragraphs 19, 22, 23 and 24). The following has been held :

“19. In the scheme of the above provisions there is no set or stage at which a magistrate can take note of a stranger individual approaching him directly with a prayer that his statement may be recorded in connection with some occurrence involving a criminal offence. If a Magistrate is obliged to record the statements of all such persons who approach him the situation would become anomalous and every Magistrate’s Court will be further crowded with a number of such intending witness brought up at the behest of accused persons.

22. 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 cases. We are unable to draw up a dividing line betwe