about 164 of Cr.P.C

Akhilesh Kumar (Querist) 01 June 2008 This query is : Resolved
can a defence lawyer pray for Making a statemet u/s 164 of Cr.PC before the court in a case of u/s 397/395/414 of the IPC to give statement of complainant/informant of the case at pre- trail stage?

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Prakash Yedhula (Expert) 02 June 2008
Provisions for such pretrial sittings have been made in several countries.In our Country the concept of pretrial hearing has not taken deep roots. Sections 291 to 298 of Cr.P.C. provide for sorting out certain matters at the pre-trial hearing. S. 294 envisages that the particulars of every document filed by the prosecution or the accused shall be included in a list, and the other party or its pleader “shall” be called upon to admit or deny the genuineness of each such document. Where the genuineness of such document is not disputed, the document may be treated as ‘proved’. This provision, unfortunately, is
rarely utilized.

H. S. Thukral (Expert) 02 June 2008
First of all it is to be understodd that confession or statements under section 164 are to be recorded during the investigation stage or on conclusion of investigation but before the trial has commenced. Therefore there is no question of defence lawyer coming before the court because the trial has not yet started.
This section empowers any metropolitan or judicial magistrate whether or not he has juridiction in the case to record any confession or statement MADE IN THE COURSE OF INVESTIGATION BY POLICE OR ANYTIME AFTERWARDS BUT BEFORE THE COMMENCEMENT OF THE INQUIRY OR TRIAL.
It is competent for a Magistrate to record the statement under s. 164 even though the IO has not taken any initiative to request the Magistrate to record the statement. There may be instances where the Police may not desire to have the statement of witness recorded. Even in such a case nothing prevents a person from going to a magistrate with a request to have his statement recorded.

Conclusion:
In case the trail has not commenced, the witness can approach a magistrate to get his statement recorded under section 164.