The main legal point established in the judgment is that a statement under Section 164 Cr.P.C. may be recorded only of a person sponsored by the investigating agency, with exceptions for the recording of a confessional statement of a person facing criminal investigation, subject to specific conditions.

Saumitra Dayal Singh, J.

Heard Sri Harsh Sharma holding brief of Shri. Akhilesh Kumar Pandey, learned counsel for the applicants and Sri Ankit Srivastava, learned A.G.A. for the State.

2. The present 482 Cr.P.C. application has been filed to quash the order dated 27.07.2018 passed by the Addl. Sessions Judge, Court No. 5, Aligarh by which that court has rejected the application filed by the applicant no. 1 to record her statement under Section 164 Cr.P.C. in Criminal Misc. Application No. 313 of 2018 that had been filed with reference to Case Crime No. 399 of 2018, under Section- 306 IPC, Police Station- Quarsi, District- Aligarh.

3. In short, an FIR was lodged on 23.03.2018 alleging commission of offence under Section 306 IPC. During the police investigation in that case, a statement of the applicant no. 1, is claimed to have been recorded by the Investigating Officer on 29.04.2018, under Section 161 Cr.P.C. Such statement has given rise to the dispute in the present case. The applicant no. 1 alleges her statement had been wrongly recorded by the police. On 23.6.2018, her mother filed an affidavit before the S.S.P., Aligarh making that allegation and basically sought to dilute the prosecution case, at this stage. No action appears to have taken on such application and the investigation remained pending. On 5.7.2018 the applicants then filed an application before the learned Court below to record the statement of applicant no. 1 under Section 164 Cr.P.C. Admittedly, the applicant had not been sponsored by the investigating agency and while no order had been passed on the aforesaid application, on 07.07.2018, the investigating agency submitted a charge sheet under Section 173(8) Cr.P.C. whereon cognizance was taken by the learned Court below on the same date without first passing any order on the application filed by the present applicants - under Section 164 Cr.P.C. Subsequently, on 27.07.2018, the impugned order has been passed by which the learned Court below has rejected the application filed by the applicant no. 1 to record her statement under section 164 Cr.P.C.

4. While rejecting that application, the learned Court below has observed since it had already taken cognizance on 07.07.2018 and therefore there remained no occasion to record a statement under Section 164 Cr.P.C.

5. Learned counsel for the applicants submits that the learned Court below has completely erred in rejecting the application to record the statement under Section 164 Cr.P.C. He would submit that the language of Section 164(1) is clear. A statement under Section 164 Cr.P.C. may be recorded at any time during investigation or at any time afterwards but before the commencement of the inquiry or trial. Insofar as other than taking cognizance no other step had been taken by the learned Magistrate as may establish that the inquiry or the trial had commenced, it remained open to the learned Court below to record the statement of the applicant no. 1 under Section 164 Cr.P.C.

6. Second, since the applicant is not a stranger but a person who had been questioned by the investigating agency, her statement should have been recorded under section 164 Cr.P.C. In this regard, he further submitted that in the facts of the present case, the police report had been submitted under Section 173(8) Cr.P.C. and not under Section 173(2) Cr.P.C. He submits that on the own showing of the investigating agency, the investigation was pending. Therefore, undeniably the stage for recording statement under Section 164 Cr.P.C. did survive.

7. As to the need for her statement to be recorded under Section 164 Cr.P.C., it has been submitted, since the police had not conducted a fair and proper investigation inasmuch as the statement of the applicant no. 1 who is a key witness had been recorded in a manner so as to aid the accused persons, the applicant no. 1 was within her rights to approach the learned Court below to get her statement recorded under Section 164 Cr.P.C.

8. Learn