Calcutta High Court (Appellete Side)
Smt. Tanusree Roy vs The State Of West Bengal on 3 September, 2013
Author: Joymalya Bagchi
Bench: Joymalya Bagchi
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Form No. J (1)
IN THE HIGH COURT AT CALCUTTA
CRIMNAL REVISIONAL JURISDICTION
Present :
The Hon'ble Justice Joymalya Bagchi
C.R.R. No. 1062 of 2012
Smt. Tanusree Roy
-Versus-
The State of West Bengal
Heard on : 3rd September, 2013
Judgment on : 3rd September, 2013
Joymalya Bagchi, J. :
Order dated 16.01.2012 passed by learned Additional Chief Judicial Magistrate, Alipore, South 24-Parganas in Jibantala P.S. Case No. 334 of 2010 under Section 341/354/506/34 of Indian Penal Code corresponding to BGR No. 6777 of 2010 has been assailed. The petitioner, who is defacto complainant in the instant case has alleged that the accused persons had outraged her modesty and had physically assaulted her. However, pursuant to 2 investigation, chargesheet was filed against one Hanif @ Hani Middey under Section 341/506 of the Indian Penal Code. The petitioner prayed for further investigation on the ground that her statement was not properly recorded and the statements of the other witnesses were also not recorded. The learned Magistrate declined to direct further investigation in view of the ratio laid down in Reeta Nag vs. State of West Bengal reported in (2010)1 C Cr. L.R. (SC) 528.
I have considered the pleadings in the instant revisional application. It appears that the statement of the petitioner who claimed to be a victim of sexual outrage was not recorded before the learned Magistrate under Section 164 of the Code of Criminal Procedure. It is imperative that in the course of investigation statement of a victim of sexual assault be recorded under Section 164 of the Code of Criminal Procedure before a Magistrate. Sections 161(3) and 164(5A) of the Code of Criminal Procedure (as amended by Criminal Law (Amendment) Act, 2013) read as follows :
"161. Examination of witnesses by police. -
(1)................................................
(2)...............................................
(3) The police officer may reduce into writing any statement made to him in the course of an examination under this section; and if he does so, he shall make a separate and true 3 record of the statement of each such person whose statement he records.
[Provided that statement made under this sub-section may also be recorded by audio-video electronic means.] [Provided further that the statement of a woman against whom an offence under section 354, section 354A, section 354B, section 354C, section 354D, section 376, section 376A, section 376B, section 376C, section 376D, section 376E or section 509 of the Indian Penal Code (45 of 1860) is alleged to have been committed or attempted shall be recorded, by a woman police officer or any woman officer.]
164. Recording of confessions and statements. - ........................................................................ 164(5A)(a) In cases punishable under section 354, section 354A, section 354B, section 354C, section 354D, sub-section (1) or sub section (2) of section 376, section 376A, section 376B, section 376C, section 376D, section 376E or section 509 of the Indian Penal Code (45 of 1860), the Judicial Magistrate shall record the statement of the person against whom such offence has been committed in the manner prescribed in sub-section (5), as soon as the commission of the offence is brought to the notice of the police:
Provided that if the person making the statement is temporarily or permanently mentally or physically disabled, the Magistrate shall take the assistance of an interpreter or a special educator in recording the statement:
Provided further that if the person making the statement is temporarily or permanently mentally or physically disabled, the statement made by the person, with the assistance of an interpreter or a special educator, shall be videographed.
(b) A statement recorded under clause (a) of a person, who is temporarily or permanently mentally or physically disabled, shall be considered a statement in lieu of examination-in-
chief, as specified in section 137 of the Indian Evidence Act, 1872 (1 of 1872) such that the maker of the statement can be cross-examined on such statement, without the need for recording the same at the time of trial."
Although the aforesaid amendments were incorporated subsequent to the commission of the alleged offence in the instant 4 case, the said provisions being enabling ones relating to the manner and procedure of investigation of a crime would definitely be applicable to the pending cases/investigation, as the present one.
The learned Magistrate had failed to appreciate that in the case of Reeta Nag (supra) prayer for further investigation by complainant had been turned down on the premise that some accused persons had not been arraigned in the chargesheet. The Apex Court observed that such a situation could be taken care of by resorting to powers under Section 319 of the Code of Criminal Procedure.
I accordingly allow the revisional application and set aside the impugned order.
I direct the investigating agency to record the statement of the petitioner victim under Section 164(5A) of the Code of Criminal Procedure before the learned Magistrate and conduct such or further investigation, as may be necessary, in the interest of justice. The investigation shall be conducted with utmost dispatch and be concluded preferably within a period of six months. The investigating agency shall also apply its mind to the materials collected in the course of such further investigation and, if necessary, add Section 354 of the Indian Penal Code in the supplementary police report.
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Office is directed to send a copy of this order to the trial court for necessary action.
(Joymalya Bagchi, J.)