JUDGMENT P.R. BORA, J. 1. Heard. Rule. Rule returnable forthwith. Heard finally by consent of parties. 2. In the present writ petition, the petitioner is seeking direction against Chief Judicial Magistrate, Aurangabad to accept his application for surrender and for recording his confession in Crime No.71/2014 registered at Police Station, Newasa, District Ahmednagar. 3. The averments in the petition reveal that the present petitioner had filed an application before the Chief Judicial Magistrate, Aurangabad, contending that he is coaccused in Crime No.71/2014 registered at Police Station, Newasa District Ahmednagar and intends to surrender before the learned Magistrate and desires to confess his guilt. He had, therefore, prayed in the said application for recording his confession under Section 164 of Code of Criminal Procedure. 4. Learned Chief Judicial Magistrate, vide order passed on 4.6.2014 rejected the said application, whereupon the petitioner preferred Criminal Revision No.150/2014 before the Sessions Court at Aurangabad. The learned Additional Sessions Judge, vide Judgment and Order dated 6.6.2014 dismissed the Revision. The petitioner has, therefore, approached this court in writ jurisdiction. 5. Mr.Sonpethkar, learned Counsel appearing for the petitioner, submitted that in view of the provisions under Section 164 Cr.P.C. , Chief Judicial Magistrate, Aurangabad ought to have recorded confession of the present petitioner. Learned Counsel further submitted that the CJM, Aurangabad has illegally and without considering the relevant provisions of law, has rejected the application on the ground of jurisdiction. He further submitted that the learned Additional Sessions Judge also failed in appreciating the import of Section 164 of Cr.P.C. and dismissed the revision. 6. Relying on the judgment of the Hon'ble Supreme Court in the case of Mahabir Singh Vs. State of Haryana – 2001 SC 2503, the learned Counsel submitted that an accused person can appear before any Magistrate for recording his confession and that it is not necessary that such accused should be produced by the police for recording the confession. . Learned Counsel further placed his reliance on the judgment of the Hon’ble Apex Court in the case of Jogendra Nahak and Ors. Vs. State of Orrisa and Ors. – (2000) 1 SCC 272 . He also cited the judgment of Gohati High Court in the case of Sankhi Chiba and Anr. Vs. State of Arunachal Pradesh 2008 Cri.L.J. 1734. 7. Learned Counsel further placed his reliance on the judgment of the Hon’ble Apex Court in the case of Jogendra Nahak and Ors. Vs. State of Orrisa and Ors. – (2000) 1 SCC 272 . He also cited the judgment of Gohati High Court in the case of Sankhi Chiba and Anr. Vs. State of Arunachal Pradesh 2008 Cri.L.J. 1734. 7. Learned Counsel attempted to bring to our notice the facts in the instant case and the situation in which, the petitioner decided to make confession. 8. It is the case of the present petitioner that he is involved in an offence of attempting to commit murder of one Avinash Shankar Patil, in respect of which, Crime No.71/2004 has been registered at Police Station, Newasa, District Ahmednagar. It is his contention that he was hired by Anita Mote and Sanjay Shinde for the said purpose. It is his further contention that now he is repenting for the acts committed by him. It is his further contention that he feels danger to his life from said Anita Mote and Sanjay Shinde. It is his further contention that a woman, who can hire somebody to kill her own husband, may finish him also to cause disappearance of the evidence and he, therefore, desires to surrender himself and wants to be in custody of police. Thus, it is the case of the petitioner that he is one of the culprits in commission of the offence registered vide Crime No.71/2004 at Police Station, Newasa. 9. Learned APP has strongly opposed the submissions made on behalf of the petitioner. Relying on the same judgment on which learned Counsel for the petitioner has relied upon, learned APP submitted that the ratio laid down in the said judgments is not at all supporting the arguments made on behalf of the petitioner. 10. We have carefully considered the submissions advanced by learned Counsel for the petitioner and learned APP. We have also gone through the orders respectively passed by learned Chief Judicial Magistrate and learned Additional Sessions Judge. 11. Section 164 of Cr.P.C. deals with recording of confessions as well as statements. Subsection (1) empowers the Magistrate to record them. It reads thus, “164. We have also gone through the orders respectively passed by learned Chief Judicial Magistrate and learned Additional Sessions Judge. 11. Section 164 of Cr.P.C. deals with recording of confessions as well as statements. Subsection (1) empowers the Magistrate to record them. It reads thus, “164. Recording of confessions and statements, (1) Any Metropolitan Magistrate or Judicial Magistrate may, whether or not he has jurisdiction in the case, record any confession or statement made to him in the course of an investigation under this Chapter or under any other law for the time being in force, or at any time afterwards before the commencement of the inquiry or trial: Provided that any confession or statement made under this subsection may also be recorded by audio-video electronic means in the presence of the advocate of the person accused of an offence; Provided that no confession shall be recorded by a police officer on whom any power of a Magistrate has been conferred under any law for the time being in force. 12. In Jogendra Nahak and Ors. (cited supra), the facts were thus : In an incident, two persons had sustained injuries and one of them later succumbed to the injuries. On completion of investigation, the police filed final report against the accused persons. Four other persons, i.e. the appellants in the matter before the Hon'ble Supreme Court, who were strangers to the said case, filed a writ petition before the High Court of Orrisa, seeking an order to the Magistrate to record their statements under Section 164 Cr.P.C. The High Court issued such order. Subsequently, at the instance of the first informant in the original criminal case, the High court, after hearing both sides, revoked the order and dismissed the writ petition. The said order passed by the Orrisa High Court was challenged before the Hon'ble Supreme Court and it was the contention of the petitioners that the Magistrate can, under Section 164 of Cr.P.C., record statements of the witnesses, even at his instance. The Hon'ble Supreme Court, however, rejected the said contention and held that, “A confession of the accused can be recorded by a magistrate. An accused is a definite person against whom there would be an accusation and the magistrate can ascertain whether he is in fact an accused person. Such a confession can be used against the maker thereof. The Hon'ble Supreme Court, however, rejected the said contention and held that, “A confession of the accused can be recorded by a magistrate. An accused is a definite person against whom there would be an accusation and the magistrate can ascertain whether he is in fact an accused person. Such a confession can be used against the maker thereof. If it is a confessional statement, the prosecution has to rely on it against the accused. But that cannot be said of a person who is not an accused. No such person can straightway go to a magistrate and require him to record a statement which he proposes to make. 13. An argument was advanced before the Hon’ble Apex Court that there may be instances when the Investigating Officer would be disinclined, may be for some ulterior motives, to record the statements of willing witnesses and, therefore, such witnesses must have a remedy to have their version regarding a case put on record and in such circumstances, the intending witnesses must have a remedy to straight way approach the Magistrate for recording their statements under Section 164 of Cr.P.C. While rejecting the said argument, the Hon’ble Apex Court held, that even for such witnesses provisions are available in law, i.e. the accused can cite them as defence witness during trial or a Court can be requested to summon them under Section 311 of Cr.P.C. The Hon’ble Apex court further observed that, such remedies are available to witnesses, who may be sidelined by the investigating officer. The Apex Court has further observed that the Magistrate cannot be burdened with the additional task of recording statement of all and sundry, who may, knock at the doors of the court with a request to record their statements under Section 164 of Cr.P.C. 14. The further observations made by the Hon’ble Apex Court are more important. It has been observed that, if the door is open to such persons to get in and if the Magistrates are put under the obligation to record their statements, then too many persons sponsored by culprits might throng before the portals of the Magistrates’ Courts for the purposes of creating record in advance for the purpose of helping the culprits. 15. 15. In Mahabir Singh’s case (cited supra) the Hon’ble Apex Court, relying upon the judgment in Jogendra Nahak’s case, held that, “We have no doubt that an accused person can appear before a Magistrate and it is not necessary that such accused should be produced by the police for recording the confession. But it is necessary that such appearance must be in the course of an investigation under Chapter XII of the Code. If the Magistrate does not know that he is concerned in a case for which investigation has been commenced under the provisions of Chapter XII it is not permissible for him to record the confession. If any person simply barges into the court and demands the Magistrate to record his confession as he has committed a cognizable offence, the course open to the Magistrate is to inform the police about it. The police in turn has to take the steps envisaged in Chapter XII of the Code. It may be possible for the Magistrate to record a confession if he has reason to believe that investigation has commenced and that the person who appeared before him demanding recording of his confession is concerned in such case. Otherwise the court of a Magistrate is not a place into which all and sundry can gatecrash and demand the Magistrate to record whatever he says as self incriminatory.” 16. A confession under Section 164 of Cr.P.C. must be either in the course of an investigation under ChapterXII or after it has ceased and before the commencement of inquiry or trial. If the confession be made before the Magistrate having jurisdiction to deal with the matter, it will be the commencement of a trial or inquiry under Chapter-XIII and treated as confession under Section 281 whether or not the case be still under the investigation of the police. 17. No doubt, the accused can himself appear before a Magistrate instead of being produced by the police and pray for recording of his confession, but, unless the Magistrate has reason to believe that an investigation has commenced and the person praying for recording of his confession is concerned in the case, the Magistrate cannot record the confession on his mere asking. 18. 18. In the light of the observations made and the law laid down by the Hon'ble Apex court in the case of Jogendra Nahak and Mahabir Singh, we examined the facts involved in the present case. Admittedly, the name of the petitioner is not figuring in the FIR in the concerned Crime. Further, there was no material before the learned Chief Judicial Magistrate, Aurangabad, whether the investigation in the said Crime had really commenced or not; and if yes, at what stage it was. In the circumstances, we do not find that the learned Chief Judicial Magistrate has committed any error in rejecting the request of the petitioner. If the Magistrate does not know that a person, who has appeared before him with a prayer for recording his statement under Section 164 of Code of Criminal Procedure, is concerned in the Crime for which the investigation has been commenced under the provisions of ChapterXII of the Code, it is not permissible for him to record his confession. In his order, the learned Chief Judicial Magistrate, Aurangabad has stated that he perused the copy of the FIR in Crime No. 71/2014, wherein, the petitioner was claiming that he has been shown as accused, was not disclosing the name of the petitioner as an accused. And that was the main reason that he declined to record his statement. 19. As mentioned earlier, the Hon'ble Supreme Court has held in Jogendra Nahak’s case that no such person, who is not an accused in concerned crime can straight way go to the Magistrate and require him to record a statement, which he proposes to make. In Jogendra Nahak’s case, the Hon’ble Apex Court has elaborately dealt with the provisions of Chapter-XII of Code of Criminal Procedure. The Hon'ble Supreme Court has observed that Chapter XII has the appellation “information to the police and their power to investigate”. The Apex Court has observed that in entire Chapter XII, there is no set or stage, at which a Magistrate can take note of a stranger individual approaching him directly with a prayer that his statement may be recorded in connection with some occurrence involving a criminal offence. The Apex Court has observed that in entire Chapter XII, there is no set or stage, at which a Magistrate can take note of a stranger individual approaching him directly with a prayer that his statement may be recorded in connection with some occurrence involving a criminal offence. The Hon'ble Supreme Court has further observed that, if a Magistrate is obliged to record the statements of all such persons, who approach him, the situation would become anomalous and every Magistrate’s court will be further crowded with number of such intending witnesses brought up at the behest of the accused persons. In the instant case also, though the name of the petitioner has not been shown as accused in the concerned crime, he had approached the Chief Judicial Magistrate, Aurangabad with a request that his confession should be recorded. 20. We reiterate that in view of the law laid down by the Hon'ble Apex court in the case of Jogendra Nahak and Mahabir Singh, the learned Chief Judicial Magistrate has rightly rejected the application of the petitioner. 21. In the result, Criminal Writ Petition fails and is accordingly dismissed. Rule discharged.