Jatan and Ors. vs State of U.P.& Ors.

I.M. Quddusi, J.—Heard learned counsel for the petitioners and the learned A.G.A.

It appears that in case crime No. 88 of 1998, under Sections 363 and 366, IPC, P.S. Naugavan Sadat, District Jyotiba Phulenagar, an application was moved before the learned Vth Addl Chief Judicial Magistrate, Moradabad, on behalf of the alleged victim, namely, Smt. Sheela for recording her statement under Section 164, Cr. PC. But the learned Magistrate has rejected the same on the ground that on 18.5.1998 Vlth Addl. Chief Judicial Magistrate has already rejected the application for getting the statement recorded under Section 164, Cr PC of the alleged victim and statement under Section 161 Cr PC has already been recorded by the Investigating Officer.

Section 164, Cr PC provides that any Metropolitan Magistrate or Judicial Magistrate may, whether or not he has jurisdiction in the case, record any confession of statement made to him in the course of an investigation under the Code of Criminal Procedure or under any other law for the time being in force, or at any time afterwards before the commencement of the inquiry or trial and any such statement shall be recorded in such manner hereinafter provided for the recording of evidence, as is in the opinion of the Magistrate, best fitted to the circumstances of the case and the Magistrate shall have power to administer oath to the person whose statement is so recorded and the statement so recorded shall be forwarded to the Magistrate by whom the case is to be inquired into or tried.

In view of the above provision, it is provided that the case the alleged victim comes and desires that her statement be recorded under Section 164, Cr PC, then the Magistrate first will determine her age and then will ascertain that the alleged victim is not in any influence and the statement will come on freewill and independently, thereafter the statement will be recorded. In case the Magistrate comes to the conclusion that the girl or the alleged victim is minor or the statement will not come on her freewill or independently, or she is under any influence of any person, then the Magistrate may refuse to record the statement indicating the reasons.

In view of the above impugned order dated 15.6.1998 passed by the learned Vth Addl. Chief Judicial Magistrate is quashed.

The writ petition succeeds and is allowed. Learned Magistrate is directed to make compliance of the order indicated above expeditiously.

Certified copy of this order be given to the learned counsel for the petitioners on payment of usual fee within three days. Petition allowed.