Judgment Intelligence
Petition DismissedRamswaroop v. State of Rajasthan
S.B. Criminal Miscellaneous (Petition) No. 3545/2020
- Court
- Rajasthan High Court
- Date of Decision
- 6 November 2020
- Bench
- Justice Sanjeev Prakash Sharma
- Relevant Acts & Sections
- Code of Criminal Procedure, 1973 — Sections 161, 162, 163, 164
Final Outcome
The High Court declined to direct the Magistrate to record the petitioner's statement under Section 164 CrPC and dismissed the criminal miscellaneous petition (paras 16-17). All pending applications were disposed of (para 18).
Key holdings
- A Magistrate has no power to record a Section 164 CrPC statement of a person unsponsored by the investigating agency (paras 15-16).
- Only the investigating agency can apply for a witness’s statement to be recorded under Section 164 (para 16).
- The bar covers a complainant-victim too; Jogendra Nahak is presumed to apply in all circumstances (para 16).
- Witnesses sidelined by the police may still be cited as defence witnesses or summoned under Section 311 (para 15).
Case explainer by NyayVidhan: an account of this judgment and the law it laid down, not the court's text. The judgment itself is the authoritative version.
Brief Facts
The petitioner's complaint was sent for investigation under Section 156(3) CrPC, and an FIR was registered under Sections 406, 420, 167, 467, 468, 471 and 120-B IPC alleging embezzlement of Rs. 6,07,29,306 (para 1). He alleged that the Investigating Officer, trying to help the accused, recorded his Section 161 statement wrongly on 09.07.2020, and he promptly applied to the Magistrate to record his statement on oath under Section 164 (paras 2-3). The Magistrate rejected the application, relying on Jogendra Nahak (para 4). In the High Court the petitioner contended that Jogendra Nahak concerned witnesses supporting the accused, not a complainant, and that Section 163(2) lets a person make a statement of his own free will (paras 4-7).
Court's Findings
Chapter XII CrPC empowers the police to investigate and to examine witnesses under Section 161; such statements are not signed (Section 162), and Section 163 bars a police officer from preventing any person from making a statement of his own free will during the investigation (paras 10-12). The question was whether a person whose Section 161 statement was recorded against his will can apply to the Magistrate to record his statement in support of his complaint (para 13). The Court read Jogendra Nahak: the Code's scheme has no stage at which a Magistrate can take note of a stranger approaching him directly to have his statement recorded; other routes exist, such as being cited as a defence witness or summoned under Section 311; and Section 164(1) does not empower a Magistrate to record the statement of a person unsponsored by the investigating agency (paras 14-15). In clear terms, only the investigating agency can move an application to record a witness's statement (para 16). The plea that the Supreme Court had not considered a complainant or victim wanting his statement recorded was rejected: a presumption has to be drawn that the law it laid down applies in all circumstances (para 16).
Legal Principle
Under Section 164(1) CrPC, as read in Jogendra Nahak v. State of Orissa, a Magistrate may record a witness's statement only when the investigating agency applies for it. A complainant or victim who alleges that the police misrecorded his Section 161 statement cannot directly ask the Magistrate to record his statement (paras 15-16).
Precedents Relied Upon
- Jogendra Nahak & Others v. State of Orissa & Others 2000(1) SCC 272
Section 164(1) CrPC does not empower a Magistrate to record the statement of a person unsponsored by the investigating agency; a witness cannot approach the Magistrate directly, since remedies exist at trial (defence witness, Section 311). Applied to a complainant-victim alleging that his Section 161 statement was wrongly recorded; the plea that the Supreme Court had not considered such a case was rejected.