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Re: sec. 164 Cr.P.C.

Querist : Anonymous (Querist) 25 November 2010 This query is : Resolved 
"A" (Boy)eloped with "B" (Girl)and they got married as per muslims rituals. Father of "B" lodged FIR with the police and police regstered a case against"A" U/S 363 IPC. In the FIR the age of "B" has been mention as 15 years Old.

Since "B" is in love with "A" and wants to be with "A" as married couple she is willing to give witness before Magistrate that she went with "A" voluntarily and got married. On a private medical examination, age of "B" was found to be 20 years. "B" filed an application before MM in Delhi to record her statement U/S 164 CrPC ,but the MM wants some citation of Supreme Court or High Court.

Can anyone provide any citation in this regard.

Devajyoti Barman (Expert) 25 November 2010
It is really surprisin that the MM asks for citation as making statements u/s 164 crpc does not requiire any citation and the court either on its own or at the request of the victim or de facto complainant does take such statements in a routine manner.
Arvind Singh Chauhan (Expert) 25 November 2010
I fully agree with Barman Sir's advice.
virender (Expert) 25 November 2010
sorry i differ with the experts as statement u/s 164 Cr.P.C. can only be recorded on the application of I.O. or by Police.
Guest (Expert) 25 November 2010
I am not agree with Mr Barman.

The motive behind recording of such statement is that if at the subsequent stage, the maker of such statement fails to lend support to the prosecution case, she can be confronted therewith. Such an application can be moved only by the Investigating Officer to the Ilaqa Magistrate. There is no provision in the Cr.P.C. contemplating that the investigating agency is bound to move such an application at the mere asking of the complainant party.

I would like to add further that...

the legal position is that the statements of witnesses can be recorded by the Magistrate under section 164 Cr.P.C. on the request of the investigating agency only , and he can not suo motu record the statement of any witness under section 164 Cr.P.C. This position has been explained by Hon'ble Supreme Court in Jogendra Nahak Vs. State of Orissa : AIR 1999 SC 2565. In this case the Magistrate had recorded statements of some persons under section 164 Cr.P.C. under the directions issued by High Court in a writ petition. The Hon'ble Supreme court held that the above direction of High Court was erroneous and made the following observations:

"Thus, on a consideration of various aspects, 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 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."

The same view was followed by Rajasthan High Court in Birju Ram Vs. State of Rajasthan 2006 Cr.L.J.1794 in which the following observations were made:

"In view of the above law laid down by Hon'ble Supreme Court the Magistrate has no jurisdiction to record statement of aforesaid witnesses under section 164 Cr.P.C. when no request was made from the side of the I.O. for recording statements of the witnesses, and as such he acted without jurisdiction in recording their statements under section 164 Cr.P.C. and as such those statements can not be taken into consideration."
Advocate. Arunagiri (Expert) 25 November 2010
I agree with Mr.Acharya.
Querist : Anonymous (Querist) 26 November 2010
Thanx to all. Then what could be the remedy for A and B. If they go to police the police will arrest "A" and would might influence 'B' to change her stand or may send her to places like " Nari Niketan' etc. Should "A'and 'B' approach Delhi High Court u/s 482 for quashing the FIR . Can "B" make her statement there that she is major and got married of her own without any undue influence, force or coercion.
Guest (Expert) 26 November 2010
Yes. Both A AND B cojointly file criminal misc petition under section 482 Cr.P.C. for quashing the FIR.
Querist : Anonymous (Querist) 26 November 2010
Thanks Mr. Acharya
SANJAY GUPTA (Expert) 27 November 2010
Make an affidavit before the magistrate stating the date of marriage and age of a and b and send it to the investigating officer of this case for his reference and also do as advice by Mr.Acharya.

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