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A Magistrate does not have investigative powers to record statements during the investigation: Rajasthan High Court

The Magistrate does not have the power to record statements of a person unsponsored by the Investigating Agency since it might lead to burdening the Magistrate with additional tasks while simultaneously also opening up new avenues for culprits to escape the from the hands of the judiciary. The single bench consisting of J. Sanjeev Prakash Sharma, in the matter of Ramswaroop S/o Shri Bherulal, Present Sewa Sahakari Samit Nagal Bairasi Tehsil Dausa District Dausa (Raj.) v. State of Rajasthan through P.P. [S.B. Criminal Miscellaneous (Petition) No. 3545/2020], shed light upon the investigating powers of the Police.

The petitioner-victim lodged a complaint against the accused as an FIR under Section 156(3) Cr.P.C. The FIR was registered under Section 406, 420, 167, 467, 468, 471 & 120-B of the IPC wherein the allegation levelled against the accused was that of embezzlement of a huge sum of Rs. 6,07,29,306/-. In the present petition, the petitioner argued that his statement was wrongfully recorded by the Investigating Officer under Section 161 Cr.P.C. The petitioner had previously moved an application to the Magistrate seeking liberty to give his statement under Section 164 Cr.P.C. on oath so that the correct facts may go on the court records. In this application, the victim claimed that the Investigating Officer  was helping the accused and therefore not recording the statement correctly.

The Magistrate  rejected the application relying on the Supreme Court judgement in the case of Jogendra Nahak & Others v. State of Orissa and Others [(2000) 1 SCC 272], wherein it was 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.”.

In the present petition, the counsel for the petitioner submits that the facts of the aforementioned case were completely different from the present case. In the former case, the witnesses wanted to bring the correct facts on record before the Investigating Officer and hence, approached the HC, however, in the present case, it is the victim himself who wants to do so. The counsel hence, pleaded that it should be directed to the Magistrate to record the statement of the petitioner in the interest of justice.

The High Court, having considered the submissions, looked into Chapter XII of the Cr.P.C. which lays down provisions relating to information to the Police and their powers to investigate. Considering Section 163 and 164 of the same the court said that “it is apparent that while statement of witnesses can be examined and recorded by the Police under Section 161 Cr.P.C. and such statements are not required to be signed in terms of Section 162. Section 163 provides that no Police Officer or any other authority shall prevent by any caution or otherwise any person in the course of any investigation under this Chapter any statement which he may be deposed to make on his own freewill. The question before this court is that if such is the case as alleged by the petitioner who has been prevented to give his statement of his own freewill and his statement under Section 161 Cr.P.C. has been recorded against his will, can he move an application before the Magistrate for getting his statement recorded in support of the complaint made by him”.

Further looking it the Jogendra Nahak case, the HC rejected the petition stating that “the Supreme Court has held that Magistrate does not have the power to record the statement of a person unsponsored by the Investigating Agency. In other words, it has empowered only the Investigating Agency to move an appropriate application for recording the statement of any witnesses”.

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