Makhan Singh and Another vs State of M.P.

Anil Sharma, J.—In spite of directions given on 6.9.2010 neither case diary has been produced nor the Investigation Officer is present.

Arguments heard.

The petitioners have filed this petition u/s 397/401 read with Section 482 of Cr.P.C. against the order dated 30.8.2010 passed by JMFC Gwalior (Shri A.K. Pandey) in unregistered case in which an application filed by the applicants petitioners for recording their statement u/s 164 of Cr.P.C. in Crime No. 228 of 2010 of Police Station Kampoo, Gwalior (MP) has been dismissed on the ground that it is the discretion of Police/Investigating Officer how investigation has to be done. The Court cannot direct the police by sending statements u/s 164 to consider them in the investigation. The only question involved is that whether a witness can appear before the Magistrate directly, the Judicial Magistrate is duty bound to take his statement. Section 164 Cr.P.C. makes the provision for recording of confessional statements.

Hon''ble the Apex Court has held in the matter of Mahabir Singh etc. etc. Vs. State of Haryana, , that for recording the confession, the accused himself can appear before Magistrate he need not be produced by police in recording confession. The only condition is that the appearance of the accused must be "in the course of an investigation" under Chapter XII of Code. Witnesses is also same therefore, the learned judicial Magistrate has not exercised the jurisdiction vested in him in passing the impugned order, he should have taken the statement of the applicant/petitioners who were before him because it is an admitted fact that investigation is still going on in Crime No.228/10 of Police Station Kampoo, Gwalior (M.P.).

Therefore, petition is allowed. The petitioners Makhan Singh Kushwah and Malkhan Singh Kushwah are directed to appear before the Chief Judicial Magistrate, Gwalior on 9.9.2010 who neither himself shall record the statements of petitioners u/s 161 CrPC or get it recorded by the Judicial Magistrate having local jurisdiction. Case diary may be called if necessary to record the statement of petitioners. Copy of the statements so J recorded shall be forwarded to the concerned Magistrate under Sub-Section (6) of Section 164 of Cr.P.C and also to the Investigating Officer in Crime No.228/10 of Police Station Kampoo, Gwalior, M.P. for consideration and necessary action.

Copy of this order be sent to Chief Judicial Magistrate, Gwalior and S.H.O., Police Station, Kampoo, Gwalior.