An interesting question arises for consideration in this case. Petitioner wanted to have her statement record by a Magistrate under S. 164 of the Code of Criminal Procedure, for short the Code. For the said purpose she filed a petition before the Magistrate who rejected the same stating "it is not expedient to record her statement at this stage, as she can very well avail the opportunity to disclose the facts known to her, at the trial stage, if she desires." This order is under challenge.

2. S. 164(1) of the Code Reads:

"Any Metropolitan Magistrate or Judicial Magistrate May, whether or not he has jurisdiction in the case, recorded any confession or statement made to him in the course of an investigation under this chapter or under any other law for the time being in force, or at any time afterwards before the commencement of the inquiry or trial:

Provided that no confession shall be recorded by a police officer on whom any power of a Magistrate has been conferred under any law for the time being in force."

A reading of the above provision would show that it is competent for a Magistrate to record a statement even though the investigating police have not taken any initiative to request the Magistrate to record the statement. It is not necessary that the Magistrate should be moved by the police to record the statement. There may be instances where police may not desire to have statement of a witness recorded. Even in such a case nothing prevents a persons from going to a Magistrate with request to have the statement recorded. If the Magistrate records the statements he has to forward it to the Magistrate by whom the case is to be enquired into or tried.

3. Ordinarily, during investigations made by a police officer persons acquainted with the facts or circumstances of the offence would be questioned by him, especially so when that person presents himself for such an interrogation. There can be exceptional cases where the police, for their own reasons, may refrain from recording the statements of such a person. What is the remedy of such a person who is anxious to have his version brought on record. If S. 164(1) of the Code is read in that perspective, it can be seen that the Magistrate has the power to record the statement of such person. When a person, without being initiated by the police seeks to invoke the powers of the Magistrate under S. 164 of the Code the Magistrate has wide discretion to record his statement or refuse to record the same. This discretion has to be exercised judicially.

4. The statement of witness is generally recorded under S. 164 of the Code to fix him up with that statement when it is feared that he may resile afterwards. Ordinarily the police, in the course of investigation, sends witnesses for having their statements recorded by a Magistrate under S. 164 of the Code when they feel that there may be some uncertainty about the evidence or when it is felt that the witness may at some distance of time speak falsely or misleadingly with deliberate intention. If a statement of a witness is previously recorded under S. 164 of the Code, it leads to the inference that there was a time when police though the witness may change. If the witness sticks to the statement made by him, the mere fact that his statement was previously recorded under S. 164 will not be sufficient to discard it. A statement recorded under S. 164 of the Code is not substantive evidence. It can be used either for contradiction or for corroboration. If this be the legal position, what can be the purpose of a person approaching the Magistrate to record his own statement On account of the righteous indignation, if a person approaches the Magistrate to record his statement under S. 164 of the Code, there is no uncertainty about the evidence and there is no chance for him to speak falsely or misleadingly at later stage. So the Statements of such a witness need not be recorded under S. 164 of the Code for the purpose of being used for corroboration or contradiction at a later stage in the trial.

5. In the instant case the incident is stated to have happened on 28th Makaram 1160, (10-2-1985). The petitioner claims to have seen some events connected with the death of one Jolly. According to the petitioner, the police did not apprehend the actual culprit and that they refused to hear her or record her statement. Therefore she has approached the Magistrate and filed M.P. 1241/85 on 23-5-1985. By that time the final report in Crime 18/85 of the Konny police station (relating to the death of Jolly) has already been laid before court. A statement under S. 164 of the Code is to be recorded in the course of investigation or at any time afterwards before the commencement of the inquiry or trial. Since the final report has already been laid by the police, it is almost certain that the Magistrate would have commenced the inquiry for committal.

6. According to the petitioner the investigating officer did not hear her or record her statement. So her statement will not go to help the prosecution. It can only benefit the accused. The accused can, if he so wants, make use of the evidence of the petitioner by citing her as defence witness in trial. The learned Magistrate dismissed the petition filed before him taking the above view. In these circumstances, it cannot be held that the court below acted illegally or with material irregularity in the exercise of its jurisdiction.

The result, therefore is the criminal revision petition fails. It is accordingly dismissed.

Petition dismissed.