Honble MITAL, J.–The petitioner Smt. Pushpa Sharma has preferred this revision petition challenging the order dated 24.3.99 in F.I.R. No. 115 of 99, Police Station, Nimbahera passed by Judicial Magistrate, Nimbahera whereby he declined to record the statement of the petitioner under Section 164 on her application. (2). The brief facts of the case are that a Parcha Bayan of the petitioner was recorded by Narayan Singh, A.S.I., Police Station, Nimbahera in the hospital at 11.10 A.M. on 8.3.99. In that Parcha Bayan, the petitioner stated that she was married to Rajesh 3 years back. The father-in-law Mohanlal and mother-in-law Smt. Kamla always used to pass comments that no dowry was given by her parents. Due to the maltreatment and torture by her in-laws, she consumed poisioneous pesticide and told her mother -in-law that she had consumed the poision, Her husband also came from the field, who with his younger brother Dinesh brought her on the motor cycle in the hospital. The investigation commenced after registration of the case under Sec. 498 A I.P.C. on the said Parcha Bayan. (3). The petitioner filed an application along with an affidavit on 11.3.99 to the Superintendent of Police, Chittorgarh denying the contents of the above Parcha Bayan and requested for proper and fair investigation. She stated in that application that she was in semi unconscious condition under the effect of the medicines administered to her and she never gave above stated Parcha Bayan to the police official. The police is trying to harass and involve her in-laws unnecessarily. She stated that in fact she had taken the pesticide by mistake under the impression that it was the bottle of syrup for treatment of cough and cold. When her husband came back from the field, it was detected, when the bottle was seen by her husband on her complaints of giddiness. Thereafter she was brought to the hospital for treatment by her husband and brother-in-law. The police did not take any appropriate action on this application of the petitioner. Therefore, she moved an application before the learned Judicial Magistrate under Sec. 164 Cr. P.C. for recording her statement on the ground that police is not conducting fair investigation and the statement recorded by the Police official was not true. The learned Judicial Magistrate by a brief order dated 24.3.99 impugned in this revision petition dismissed the application. Therefore, she moved an application before the learned Judicial Magistrate under Sec. 164 Cr. P.C. for recording her statement on the ground that police is not conducting fair investigation and the statement recorded by the Police official was not true. The learned Judicial Magistrate by a brief order dated 24.3.99 impugned in this revision petition dismissed the application. The impugned order shows that the learned Judicial Magistrate found the application premature as the investigation was going on and recording of the statement u/Sec.164 will tantamount to obstruction in the investigation at this stage. (4). I have heard the learned counsel for the petitioner and the learned Public Prosecutor. The learned counsel for the petitioner has vehemently contended that the reasons assigned by the learned Judicial Magistrate are without any basis and the impugned order has been passed without considering the facts and circumstances of the case and the allegation of levelled by the petitioner regarding the investigation of the case. It is true that the learned Judicial Magistrate has the discretion to record the statement under Sec. 164 Cr. P.C. but this judicial discretion has not been exercised properly and after considering the relevant and material facts and circumstances of the case and the contentions raised by the petitioner. He relied upon Mst. Valasamma vs. The State of Rajasthan (1) and Smt. Mangi vs. State of Rajasthan (2). The learned Public Prosecutor has contended that the discretion exercised by the learned Judicial Magistrate does not call for interference. The petitioner cannot be allowed to create evidence by getting her statement recorded under Sec. 164 Cr.P.C. to frustrate the investigation by changing her version given by her earlier in the Parcha Bayan. (5). I have given my careful consideration to the rival submissions. Sec.164 Cr.P.C. provides for recording of confession and statements during the course of investigation or under any other law for the time being in force or at any time afterwards before the commencement of the inquiry or trial. Any Metropolitan Magistrate or Judicial Magistrate even if he has not jurisdiction can record comfession or statement made to him. Sub-Section (2) to (5) prescribe the procedure to record such statement or the confession. Sub-section (6) provides that the confession or the statement recorded by the Magistrate shall be forwarded to the Magistrate by whom the case is to be inquired or tried. (6). Sub-Section (2) to (5) prescribe the procedure to record such statement or the confession. Sub-section (6) provides that the confession or the statement recorded by the Magistrate shall be forwarded to the Magistrate by whom the case is to be inquired or tried. (6). The statement under Sec.164 Cr.P.C. may be recorded on the application made on behalf of the police which is generally not refused. But it is not always necessary that the Magistrate should be moved by the police for recording the statement. The witness can also approach the court for recording the statement under Sec. 164 Cr. P.C. for reasons given in the application which is well within the scope of Sec. 164 Cr.P.C. But it is not obligatory for the Magistrate to record the statement on the application of a witness and there is always a discretion vested with the Magistrate to decline to record the statement. If a witness approaches the court with the prayer to record his statement under Sec. 164 Cr.P.C., it is incumbent on the Magistrate to exercise the discretion properly and judiciously guided by facts and circumstances revealed during the investigation and after considering the reasons assigned by the witness. The exercise of such discretion should not be refused merely on the ground that it will adversely affect the investigation or the statements are likely to be inconsistent or contradictory to the statements already recorded by the police under Sec. 161 Cr.P.C. or the First Information Report. If a witness is aggrieved by the course of investigation or the statement recorded by the police under Section 161 Cr.P.C. which he considers untrue, the witness has no other remedy except to take recorse to get the statement recorded under Sec. 164 Cr. P.C. by a Judicial Magistrate. Therefore the learned Judicial Magistrate must exercise the discretion vested in him under Section 164 Cr.P.C. with great care and caution keeping in mind the relevant facts of the case and also the ground shown by the witness in his prayer for recording the statement. Such exercise of the discretion will depend upon and vary on the facts and circumstances of each case and the material or the ground given by the witness for satisfying the court the justification to record the statement. (7). Such exercise of the discretion will depend upon and vary on the facts and circumstances of each case and the material or the ground given by the witness for satisfying the court the justification to record the statement. (7). Viewed from above angle, I find that the impugned order lacks from proper exercise of jurisdiction because it is based on non-consideration of the reason assigned by the petitioner and the over all facts and circumstances of the case. The important aspect of instant case is that the petitioner submitted an application to the Superintendent of Police with her affidavit that her Parcha Bayan was not correctly recorded. She was in semi conscious condition. She did not give any statement and also did not sign the papers. She is educated and always puts her signatures on the documents. She also enclosed an affidavit in support of her contention. Thereafter, she filed the application in the court of learned Judicial Magistrate with the allegation that the police is not conducting proper and fair investigation. Therefore, she wanted to get her statement recorded under Sec.164 Cr.P.C. It is also very relevant that when the petitioner filed an application before the Superintendent of Police denying the statements and the allegation of demand of dowry supported by affidavit, the same was considered by the C.O., Nimbahera and it was considered proper by him to apply in the court for recording her statement under Sec. 164 Cr. P.C. so that correct facts may be known in the interest of proper and fair investigation. The Investigating Officer also moved an application before the learned Judicial Magistrate on 5.4.99 but that application was also rejected holding that application of the same nature for recording the statement under Section 164 Cr.P.C. filed by the petitioner i.e. Smt. Pushpa Sharma already stood rejected and therefore, now her statement could not be recorded even on the application of the Investigating Officer. The aforesaid view adopted by the learned Judicial Magistrate is wholly erroneous and against the provisions of Sec. 164 Cr. P.C. which provide to record the statement of the witness in appropriate circumstances to have a check on wrong or biased investigation and also to obtain earliest possible version of material witness on oath recorded by the Judicial Magistrate to be used during the trial by the prosecution as well as the defence. P.C. which provide to record the statement of the witness in appropriate circumstances to have a check on wrong or biased investigation and also to obtain earliest possible version of material witness on oath recorded by the Judicial Magistrate to be used during the trial by the prosecution as well as the defence. In the instant case the learned Judicial Magistrate did not make efforts to peruse the case diary before disallowing the application of the petitioner to satisfy himself about the allegations made by the petitioner. At the same time the learned Judicial Magistrate also did not apply his mind on the application of the Investigating Officer to record the statement under Sec.164 Cr. P.C. and it was mechanically rejected on the ground that the application of the petitioner has already been rejected. This could not be a legal and valid ground to decline to record the statement. It is not also evident from the order of the learned Judicial Magistrate that how the statement if recorded under Sec. 164 Cr. P.C. could be an obstruction in the investigation. The application of the petitioner could not be treated as premature because it was filed during the course of investigation i.e. much prior to the inquiry or trial as prescribed under Sec. 164 Cr. P.C. (8). As a result of the aforesaid discussion, I have no hesitation to arrive at the conclusion that the impugned order is not just and proper and it is liable to be set aside. The petition is hereby allowed and the impugned order dated 24.3.99 is hereby set aside. The petitioner is directed to appear before the learned Judicial Magistrate, Nimbahera within 15 days from today with a certified copy of this order. The learned Judicial Magistrate shall record the statement of the petitioner under Section 164 Cr. P.C. on the day she presents herself before the Court. If for any unavoidable reasons the statement is not recorded on the same day then the same shall be recorded on the following day.