Madhya Pradesh High Court
Rahul Badgaiya vs The State Of Madhya Pradesh on 22 January, 2025
NEUTRAL CITATION NO. 2025:MPHC-JBP:2998
1 MCRC-27914-2024
IN THE HIGH COURT OF MADHYA PRADESH
AT JABALPUR
BEFORE
HON'BLE SHRI JUSTICE PRAMOD KUMAR AGRAWAL
MISC. CRIMINAL CASE No. 27914 of 2024
RAHUL BADGAIYA
Versus
THE STATE OF MADHYA PRADESH AND OTHERS
Appearance:
Shri Anil Khare - Senior Advocate with Shri Madhur Shukla - Advocate for
applicant.
Shri C.M. Tiwari - Government Advocate for State/respondent No.1.
Shri Rakesh Kumar Shukla - Advocate for respondent No.2 and 3.
Reserved on : 20.11.2024
Pronounced on : 22.01.2025
.......................................................................................................................................................
ORDER
The present application under Section 482 of Cr.P.C. is being
preferred against registration of the offences under Sections 363, 366, 376(2)
(n), 376, 376(3) of the Indian Penal Code, 1860 read with Sections 3,4,5,6 of
Protection of Children from Sexual offences Act, 2012 against the present
applicant.
2. Learned Senior Advocate for the applicant submits that in the
aforesaid offences, charge-sheet in respect of the main accused person
namely Jai Dubey has already been filed, however against the present
applicant, the investigation under 173(8) of the Criminal Procedure Code is
still pending. The respondent No.3, who happens to be the father of victim
presented an application before the concerning Superintendent of Police for
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recording the statement of prosecutrix again under Section 164 of the Cr.P.C.
and thereafter, he appeared before the Special Judge (POCSO Act), Jabalpur
and preferred an application that the statement of the victim under Section
164 may be recorded again, so that the present applicant should not be
falsely implicated in the case. The aforesaid application was dismissed by the
Special Judge on the ground that the arrest, investigation & other
proceedings are yet to take place in respect of the present applicant. The
applicant has nothing to do with the offence alleged, continuation of the
criminal proceedings against the present applicant would be sheer abuse of
process of law. It is further submitted that there is no bar in law to prevent
the victim from moving an application for recording the statement of the
prosecutrix under Section 164 of the Cr.P.C. for the second time or so on and
in support this, reliance has been placed in the judgment dated 14.07.2022
passed in Writ Appeal No.602/2022 (Halke Bhai Gond Vs. The State of
M.P.). Learned Senior Advocate has not pressed the application regarding
quashment of FIR but the only prayer made by the applicant is to direct the
Special Judge (POCSO), Jabalpur (M.P.) for permitting the respondent
No.2/prosecutrix to record her statement again under Section 164 of the
Criminal Procedure Code as the same is her legal right.
3 . Learned counsel for the respondent No.2 and 3 has supported the
contentions made by the learned Senior Advocate for the applicant.
4. On the other hand, learned counsel for the State vehemently
opposed the prayer on the ground that at the time of incident, prosecutrix was
minor aged about 13 years. It is submitted that her statement under Section
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161 of Cr.P.C. has been recorded by the police and statement under Section
164 of the Cr.P.C. has been recorded before the Judicial Magistrate in which
she has stated that present applicant and other co-accused person have
committed rape upon her. No cogent reason has been mentioned in the
application that why prosecutrix wants to record her statement under Section
164 of the Cr.P.C. second time in this case. It is further submitted that
learned Trial Court has rightly dismissed the application filed on behalf of
the respondent No.2/prosecutrix for again recording her statement under
Section 164 of the Cr.P.C.
5. I have heard learned counsel for the parties and perused the record.
6. It is found that at the time of incident, prosecutrix was aged about
13 years and she was recovered by the police on 11.12.2023 and just after her
recovery, her statement was recorded on 13.12.2023 under Section 161 of the
Cr.P.C. by the police and on 14.12.2023 her statement under Section 164 of
the Cr.P.C. was recorded by the Judicial Magistrate in which she has deposed
that present applicant and another co-accused have committed rape upon her.
Thereafter, on 14.03.2024, application for recording her second statement
under Section 164 of the Cr.P.C. was presented by the father of the
prosecutrix before the concerning Superintendent of Police and thereafter he
has filed an application before the trial Court which reveals that
approximately after three months from the date of her first statement, this
application has been filed, although, it is true that law does not bar recording
of statement under Section 164 of Cr.P.C. twice or more on as held in the
case of Halke Bai (Supra) but at the same time second statement should not
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be recorded to negate or defeat the earlier statement of the victim/
prosecutrix whether it is in favour or against the accused otherwise the
sanctity of the statement under Section 164 of the Cr.P.C. will loose its
value.
7. It is pertinent to mention here that application for recording of
second statement of the prosecutrix under Section 164 of the Cr.P.C. was not
sponsored by the investigating agency. In this regard, the Hon’ble Apex
Court in the case of Jogendra Nahak and Ors Vs. State of of Orissa and Ors
reported in 2000(1) SCC 272, has observed as below :-
“2. A strange motion has been made before the High Court of Orissa by
four persons who are strangers to a criminal case for direction to a
Magistrate to record their statements under section 164 of the CrPC (for
short ‘the Code’).
…… …… ……
…… …… ……
20. In re C.W. Cases (supra) Govinda Menon, J. of the Madras High
Court (as he then was) expressed the view that:
It is not necessary that the Magistrate should be moved by the police in
order that he might record a statement. There may be instances where the
police may not desire to have recorded, the statement of a witness for
some reason or other. In such a case, there is nothing preventing the
witness to go to the Magistrate and request him to record the statement
and if a Magistrate records his statement and transmits the same to the
Court where the enquiry or the trial is to go on, there is nothing wrong in
his action.
21. Nevertheless learned Single Judge sounded a note of caution like
this:
But such a thing will be very exceptional, as there is always a discretion
in the Magistrate to refuse to re cord the statement. Ordinarily, when a
Police Officer requests the Magistrate to record the statement, of a
witness on oath under section 161 Cr. P.C., such a request will not be re
fused by the Magistrate. But when a private party seeks to invoke the
powers of a Magistrate under section 164, Cr. P.C. the Magistrate has got
a very wide discretion in acting or re fusing to act.
22. The same approach was made by Single Judges in State of Orissa v.
A.P. Das (supra) and in Kunjukutty v. State of Kerala (supra).
23. If a Magistrate has power to record statement of any person under
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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 between witnesses
whose statements are liable to be recorded by the Magistrate on being
approached for that purpose and those not to be recorded. The contention
that there may be instances, when the Investigating Officer would be
disinclined to record statements of willing witnesses and therefore such
witnesses must have a remedy to have their version regarding a case put
on record, is no answer to the question whether any intending witness
can straightaway approach a Magistrate for recording his statement
under section 164 of the Code. Even for such witnesses provisions are
available in law, e.g. the accused can cite them as defence witnesses,
during trial or the Court can be requested to summon them under section
311 of the Code. When such, remedies are available to witnesses (who
may be sidelined by the Investigating Officers) we do not find any
special reason why the Magistrate should be burdened with the
additional task of recording the statements of all and sundry who may
knock at the door of the Court with a request to record their statements
under section 164 of the Code.
…… …… ……
…… …… ……
25. Thus, on a consideration of various aspects, we are disinclined to
interpret section 164(1) of the Code as empowering a Magistrate to
record the statement of a person unsponsored by the Investigating
Agency. The High Court has rightly disallowed me statements of the
four appellants to remain on record in this case. Of course, the said
course will be without prejudice to their evidence being adduced during
trial, if any of the parties requires it.”
8 . In the case of Ajay Kumar Parmar Vs. State of Rajasthan reported
in (2012) 12 SCC 406, it has been observed as below :-
“5. We have considered the rival submissions made by the learned
counsel for the parties and perused the records. A three Judge bench of
this Court in Jogendra Nahak & Ors. v. State of Orissa & Ors., AIR 1999
SC 2565, held that Sub-Section 5 of Section 164, deals with the
statement of a person, other than the statement of an accused i.e. a
confession. Such a statement can be recorded, only and only when, the
person making such statement is produced before the Magistrate by the
police. This Court held that, in case such a course of action, wherein
such person is allowed to appear before the Magistrate of his own
volition, is made permissible, and the doors of court are opened to them
to come as they please, and if the Magistrate starts recording all theirSignature Not Verified
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statements, then too many persons sponsored by culprits might throng
before the portals of the Magistrate courts, for the purpose of creating
record in advance to aid the said culprits. Such statements would be very
helpful to the accused to get bail and discharge orders.
6. The said judgment was distinguished by this Court in Mahabir Singh
v. State of Haryana, AIR 2001 SC 2503, on facts, but the Court
expressed its anguish at the fact that the statement of a person in the said
case was recorded under Section 164 Cr.P.C. by the Magistrate, without
knowing him personally or without any attempt of identification of the
said person, by any other person.
7. In view of the above, it is evident that this case is squarely covered by
the aforesaid judgment of the three Judge bench in Jogendra Nahak &
Ors. (Supra), which held that a person should be produced before a
Magistrate, by the police for recording his statement under Section 164
Cr.P.C. The Chief Judicial Magistrate, Sirohi, who entertained the
application and further directed the Judicial Magistrate, Sheoganj, to
record the statement of the prosecutrix, was not known to the prosecutrix
in the case and the latter also recorded her statement, without any
attempt at identification, by any court officer/lawyer/police or anybody
else.”
9. In the case of Nafeesa Vs. State of U.P. Thru Secy. Home Lucknow
and Others reported in 2015 SCC Online ALL 8731 , the High Court of
Allahabad has observed as below :-
“1. 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?
………….
………….
9. 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.
10. 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 v. State of Orissa, (2000) 1 SCC 272 : (AIR 1999 SC 2565). 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 inSignature Not Verified
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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 between witnesses
whose statements are liable to be recorded by the Magistrate on being
approached for that purpose and those not to be recorded. The contention
that there may be instances when the investigating officer would be
disinclined to record statements of willing witnesses and therefore such
witnesses must have a remedy to have their version regarding a case put
on record, is no answer to the question whether any intending witness
can straightaway approach a Magistrate for recording his statement
under Section 164 of the Code. Even for such witnesses provisions are
available in law, e.g. the accused can cite them as defence witnesses
during trial or the court can be requested to summon them under Section
311 of the Code. When such remedies are available to witnesses (who
may be sidelined by the investigating officers) we do not find any
special reason why the Magistrate should be burdened with the
additional task of recording the statements of all and sundry who may
knock at the door of the court with a request to record their statements
under Section 164 of the Code.
23. On the other hand, if the door is opened to such persons to get in
and if the Magistrates are put under the obligation to record their
statements, then too many persons sponsored by culprits might throng
before the portals of the Magistrates courts for the purpose of creating
record in advance for the purpose of helping the culprits. In the present
case, one of the arguments advanced by accused for grant of bail to them
was based on the statements of the four appellants recorded by the
Magistrate under Section 164, of the Code. It is not part of the
investigation to open up such a vista nor can such step be deemed
necessary for the administration of justice.
24. Thus, on a consideration of various aspects, we are disinclined to
interpret Section 164(1) of the Code as empowering a Magistrate to
record the statement of a person unsponsored by the investigating
agency. The High Court has rigdhy disallowed the statements of the four
appellants to remain on record in this case. Of course, the said course
will be without prejudice to their evidence being adduced during trial, if
any of the parties requires it.”
11. Considering the law laid down by the Hon’ble Supreme Court of India, and
extracted hereinabove, it becomes clear that a Magistrate cannot take note of
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an individual approaching him directly with a prayer that his/her statement
may be recorded in connection with some occurrence involving a criminal
offence. If liberty is given to anybody, and everybody, to approach a
Magistrate for recording of statement under Section 164, Cr.P.C., in connection
with an occurrence involving criminal offence, and if Magistrates are put under
an obligation to record their statement, there is every likelihood that persons
sponsored by accused/culprits might be asked to approach court of the
Magistrate for creating record/evidence in defence with the purpose to help an
accused/benefactor. If such a provision is made by way of giving liberty to a
person unsponsored by the investigating agency to give statement under
Section 164, Cr.P.C., entire investigation process would be derailed.
12. In the opinion of this Court, investigation is a searching enquiry for
ascertaining facts; detailed or careful examination. Such Investigation is to be
conducted by an investigating agency. In case persons individually are
permitted to create, “evidence in the process of investigation”, the process of
investigation would be interfered.
13. It is the duty of the investigating agency to conduct investigation. When it
is felt relevant and necessary, the investigating officer makes an application to
the magistrate to record statement of a witness under Section 164, Cr.P.C. Such
statement becomes a part of investigation record under Chapter XII of the
Code of Criminal Procedure. This process would surely be interfered, if
persons on thenown claim a right to give statement under Section 164, Cr.P.C.
Surely such a statement cannot be construed in pursuance of investigation by
the concerned investigating agency. Investigation has been defined under
Section 2(h) as follows:
“2(h) “investigatibn” includes all the proceedings under this Code for the
collection of evidence conducted by a police officer or by any person
(other than a Magistrate) who is authorised by a Magistrate in this
behalf”.
14. Considering the above it becomes illusory and apparent that only a police
officer or an investigator can sponsor a witness to a Magistrate for recording of
statement under Section 164, Cr.P.C.
15. Considering the averments made in the petition, we are of the considered
opinion that while exercising extraordinary writ jurisdiction, such direction, as
sought in the petition, cannot be given. The investigating agency is required to
proceed as per law. Ordinarily, a direction is not required to be given to the
investigating agency to investigate a case in a particular manner. As witness
can be produced before the Magistrate for recording his/her statement under
Section 164, Cr.P.C., only by the investigating officer. Apparently, the
petitioner has already given her statement once under Section 164, Cr.P.C., on
the asking of the investigating agency.
16. From the pleadings in the petition, it has become evident that the petitioner
concedes that she knowingly gave a false statement. Clearly, the petitioner can
be proceeded against for giving a statement that is false to her knowledge and
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belief.
17. At this stage, in these proceedings, it cannot even be deduced whether the
earlier version given by the petitioner was truthful or the case set up in this
petition is truthful.
18. The petitioner would have the option to give statement in court when she is
produced as a prosecution witness. It would be for the Trial Court to consider
the statement (s) of the prosecutrix and conclude whether offence has been
committed or not.
19. The question posed to the Court is answered in the negative, for the reasons
recorded above.
20. Considering the law as noticed above, as also the peculiar facts and
circumstances of the case, this Court would not like to interfere in the process
of investigation by way of issuing direction to the magistrate to record
statement of the petitioner under Section 164, Cr.P.C. Petition is dismissed.”
10. In view of the aforesaid, this Court is of the view that application
for recording of second statement of prosecutrix under Section 164 of the
Cr.P.C. was not sponsored by the investigating agency and the trial Court did
not commit any error and has given cogent reason in rejecting the aforesaid
prayer. Accordingly, this Court is not inclined to entertain this petition filed
under Section 482 of Cr.P.C to direct the trial Court for recording of second
statement of the prosecutrix under Section 164 of the Cr.P.C.
11. Resultantly, this M.Cr.C. stands dismissed.
(PRAMOD KUMAR AGRAWAL)
JUDGE
shahina
Signature Not Verified
Signed by: SHAHINA KHAN
Signing time: 22-01-2025
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