Chattisgarh High Court
Abc vs State Of Chhattisgarh on 8 July, 2022
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AFR
HIGH COURT OF CHHATTISGARH, BILASPUR
CRMP No. 895 of 2022
ABC, W/o XYZ ---- Petitioner
Versus
1. State Of Chhattisgarh Through The Secretary, Department Of
Home, Mahanadi Bhawan, Mantralaya, Atal Nagar, Raipur, District :
Raipur, Chhattisgarh
2. Inspector General Of Police, Raipur, District : Raipur, Chhattisgarh
3. Superintendent Of Police, Bemetara, District : Bemetara,
Chhattisgarh
4. Officer In Charge Of PS-Navagarh PS- Navagarh, Bemetara,
District : Bemetara, Chhattisgarh
5. Chandrashekhar Yadav, Aged About 28 Years Working As Cashier,
State Bank Of India, Navagarh, Bemetara, District - Bemetara,
Chhattisgarh R/o Navagarh, Bemetara, District - Bemetara,
Chhattisgarh (Accused)
6. Prithviraj Sen @ Mantri, Aged About 30 Years R/o Navagarh,
Bemetara, District Bemetara, Chhattisgarh (Accused)
----Respondents
For petitioner - Shri Shobhit Koshta, Advocate.
For State - Shri Ashutosh Mishra, PL.
Hon'ble Shri Justice Goutam Bhaduri Order 08/07/2022 Heard.
1. Instant petition has been filed by a victim in back drop of facts that she was subjected to forceful rape. Initially a missing report was lodged by the husband of victim as such it is the grievance that the statement for rape under Section 164 Cr.P.C. is not being recorded/sponsored by the prosecution agency despite all efforts by the victim.
2. As per the case of the petitioner/prosecutrix, she works as a 2 garbage picker, when she reached the house of respondent No.5 certain spray were administered on her as such she became unconscious/semiconscious and thereafter rape was committed. It is stated such act recorded too which was subsequently made public in the internet, in common parlance was made viral. It is further stated that when she confronted the commission of sexual assault to the respondent, she was made to sign certain blank documents on the promise that contents of internet would be removed but eventually it did not happen. Allegations are that on 16/04/2022, at the initial stage when the prosecutrix was forcefully abducted a missing report was lodged by the husband of the prosecutrix at Police Station and case was registered. Subsequently because of certain video were made viral, offence under Section 67 and 67-A of the Information Technology Act was registered. It is stated that despite all persuasion made even by the representation to the higher officials of the police the statement of the prosecutrix is not being recorded which she wanted to get it recorded under Section 164 of the Cr.P.C.
3. Learned counsel for the petitioner would submit with the amendment made in Section 164 (5A) Cr.P.C. makes it mandatory to get the statement of the victim recorded under Section 164 Cr.P.C. in cases of sexual assault. He further submits that the Supreme Court in latest judgement of Jagjeet Singh & ors. Vs. Ashish Mishra @ Monu & Anr. in Criminal Appeal No.632/2022 considered the right of the victim and it was held that at the investigation stage too the victim would have a right to get her statement recorded. He also placed his reliance in (2000) 1 SCC 272 in between Jogendra Nahak & ors Vs. State of Orissa & ors. to submit that it is not necessary to get a witness to be sponsored by the prosecution agency he/she can volunteer also and the Magistrate would 3 be under obligation to record the statement which would be part of the investigation, therefore the statement of the victim be ordered to be recorded under Section 164 Cr.P.C. before the concerned Magistrate.
4. Per contra, learned State counsel would submit that since the FIR was registered only under the Information Technology Act and no allegation of rape was made, therefore provisions of Section 164 (5A) of Cr.P.C. would not be applicable. He would submit that if the witness are given free hand to record their statement without the sponsor of the prosecution agency, it would lead to miscarriage of the justice and therefore the petition being devoid of merit is liable to be dismissed.
5. I have heard the learned counsel for the parties.
6. Along with the petition, two representation were made to the Superintendent of Police, Bemetara and also one to Inspector General of Police in month of April, 2022. Perusal of the same would show that allegations of forceful rape was clamped by victim. The question therefore would arise as to whether the statement of victim can be recorded without the intervention of the prosecution agency. In the instant case the petitioner is the victim. While deciding the case in Jagjeet Singh & ors. Vs. Ashish Mishra @ Monu & Anr. in Criminal Appeal No.632/2022 the Supreme Court while deciding a case of a bail analyzed the right of a victim. While elaborating the right of the victim, it held that until recently criminal law had been viewed on a dimensional plane wherein the Courts were required to adjudicate between the accused and the State. It held that the 'victim'- the de facto sufferer of a crime had no participation in the adjudicatory process and was made to sit outside the Court as a mute spectator. However, with the change of time in the criminal jurisprudence right of the victim, held to be recognized to be heard and to participate in a criminal proceeding.
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7. Further reiterating the law down in Mallikarjun Kodagali (Dead) v. State of Karnataka & ors. reported in (2019) 2 SCC 752 it held that while dealing the question of filing an appeal under Section 372 of Cr.P.C. it was observed that there was need to give adequate representation to victims in criminal proceedings. It further reiterated that what followed in a trial is often secondary victimisation through repeated appearances in court in a hostile or semi hostile environment in the courtroom. Though the change of the Evidence Act, trial has been made little comfortable for the victim but it was the judiciary which was proactive in ensuring that the rights of the victims are addressed as right of the accused far though over weight the rights of the victim of an offence in many respect earlier. It further held that a 'victim' within the meaning of Cr.P.C. cannot be asked to await the commencement of trial for asserting his/her right to participate in the proceedings. It held that He/She has a legally vested right to be heard at every step post the occurrence of an offence. Therefore the victim, who is the petitioner herein would be entitled to be heard in every step post the occurrence of an offence and would have a participatory rights from the state of investigation till the culmination of the proceedings in an appeal or revision.
8. Following the aforesaid principles, the amendment made in Section 164 (5A) Cr.P.C. reads as under:-
(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 376AB, section 376B, section 376C, section 376D, section 376DA, section 376DB], 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.
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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.]"
9. The section 164(5A) Cr.P.C., quoted herein above purports that in a case punishable under the referred section above, the Judicial Magistrate shall record the statement of person against whom such offence has been committed in a manner prescribed therein sub-section 5, as soon as the commission of offence is brought to the notice of police. Plain reading of the same section alongwith the report made to the Superintendent of Police and the Inspector General of Police would show that the petitioner herein had made categorical report that she was subject of sexual assault, therefore notice of commission of offence was brought to the notice of police and the section contemplates when it is punishable under the aforesaid section, the Magistrate was duty bound to record the statement. Consequently, the Magistrate is duty bound to record the statement, if the victim comes forward to record her statement.
10. The another question which falls for consideration as to whether without sponsor of the prosecution agency such statement can be recorded.
11. The Supreme Court in the matter of (2000) 1 SCC 272 in between 6 Jogendra Nahak & ors Vs. State of Orissa & ors. has considered the similar issue and held that if a Magistrate has power to record a statement of any person under Section 164 of the Code even without the investigating officer moving for it, then there is no good reason to limit the power. It further held that there cannot be distinction made about any ordinary and exceptional one and it held that interpretation of 164 (1) of the Code which empowers the Magistrate to record the statement of person unsponsored by the investigating agency, the Magistrate would be within its power to record the same. Relevant para 22 & 24 of the judgement are reproduced hereunder:-
"22. If a Magistrate has power to record statement of any person under Section 164 of the Code, even without the investigating officer moving for it, then there is no good reason to limit the power to exceptional cases. We are unable to draw up a dividing line between witnesses whose statements are liable to be recorded by the Magistrate on being approached for that purpose and those not to be recorded. The contention that there may be instances when the investigating officer would be disinclined to record statements of willing witnesses and therefore such witnesses must have a remedy to have their version regarding a case put on record, is no answer to the question whether any intending witness can straightaway approach a Magistrate for recording his statement under Section 164 of the Code. Even for such witnesses provisions are available in law, e.g. the accused can cite them as defence witnesses during trial or the court can be requested to summon them under Section 311 of the Code. When such remedies are available to witnesses (who may be sidelined by the investigating officers) we do not find any special reason why the magistrate should be burdened with the additional task of recording the statements of all and sundry who may knock at the door of the court with a request to record their statements under Section 164 of the Code.
24. Thus, on a consideration of various aspects, we are disinclined to interpret Section 164(1) of the Code as empowering a magistrate to record the statement of a person unsponsored by the investigating 7 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."
12. In view of the foregoing discussion, it is held that the petitioner herein who is a victim can get her statement recorded without being sponsored by the investigating agency. Therefore it is directed, if the victim approaches to the Court of Magistrate to get her statement recorded u/s 164 of Cr.P.C., without any sponsor of prosecution agency, the Magistrate would record the same in accordance with law.
13. With such direction, the instant petition stands allowed.
Sd/-
(Goutam Bhaduri) JUDGE gouri 8 Head Note CRMP No. 895 of 2022 Victim can get her statement recorded under Section 164 Cr.P.C. without any sponsor of prosecution agency.
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