Breaking; Recording of statement of Rape Victim by Magistrate Mandatory; SC - Disclosure of statement till filing Charge sheet prohibited [Read the Judgment]
A two Judge Bench of the Supreme Court comprising of Justice Gyan Sudha Misra and Justice V. Gopala Gowda has issued Guidelines in exercise of powers under Article 142 of the Constitution of India in the form of Mandamus to all the police station in charge in the entire country regarding ‘recording statement of Rape Victim’. The Directions are as follows;
i. Upon receipt of information relating to the commission of offence of rape, the Investigating Officer shall make immediate steps to take the victim to any Metropolitan/preferably Judicial Magistrate for the purpose of recording her statement under Section 164 Cr.P.C. A copy of the statement under Section 164 Cr.P.C. should be handed over to the Investigating Officer immediately with a specific direction that the contents of such statement under Section 164 Cr.P.C. should not be disclosed to any person till charge sheet/report under Section 173 Cr.P.C. is filed.
ii. The Investigating Officer shall as far as possible take the victim to the nearest Lady Metropolitan/preferably Lady Judicial Magistrate.
iii. The Investigating Officer shall record specifically the date and the time at which he learnt about the commission of the offence of rape and the date and time at which he took the victim to the Metropolitan/preferably Lady Judicial Magistrate as aforesaid.
iv. If there is any delay exceeding 24 hours in taking the victim to the Magistrate, the Investigating Officer should record the reasons for the same in the case diary and hand over a copy of the same to the Magistrate.
v. Medical Examination of the victim: Section 164 A Cr.P.C. inserted by Act 25 of 2005 in Cr.P.C. imposes an obligation on the part of Investigating Officer to get the victim of the rape immediately medically examined. A copy of the report of such medical examination should be immediately handed over to the Magistrate who records the statement of the victim under Section 164 Cr.P.C.
It is also directed that a copy of the order be circulated to all the Director Generals of Police of all the States/Commissioner of Police in Metropolitan cities / Commissioner of Police of Union Territories who are then directed to send a copy of this order to all the police stations in charge in their States/Union Territories for its compliance in cases which are registered on or after the receipt of a copy of these directions. Necessary instructions by the DGPs/ Commissioners of Police be also issued to all the police station in-charge by the DGPs/Commissioner of Police incorporating the directions issued by us and recorded hereinbefore.
The Court noted that although there are Fast Track Courts for disposal of cases, we do not yet have a fast track procedure for dealing with cases of rape and gang rape lodged under Section 376 IPC with the result that such heinous offences are repeated incessantly. Court further observed that there is a pressing need to introduce drastic amendments into the Cr.P.C. in the nature of fast Track procedure for Fast Track Courts when it considered just and appropriate to issue notice and called upon the Union of India to file its response as to why it should not take initiative and sincere steps for introducing necessary amendment into the Cr.P.C., 1973 involving trial for the charge of 'Rape' by directing that all the witnesses who are examined in relation to the offence and incident of rape cases should be straightway produced preferably before the Lady Judicial Magistrate for recording their statement to be kept in sealed cover and thereafter the same be treated as evidence at the stage of trial by producing the same in record in accordance with law which may be put to test by subjecting it to cross-examination.
The Court was of the view that if the evidence is recorded for the first time itself before the Judicial Magistrate under Section 164 Cr. P.C. and the same be kept in sealed cover to be produced and treated as deposition of the witnesses and hence admissible at the stage of trial with liberty to the defence to cross- examine them with further liberty to the accused to lead his defence witness and other evidence with a right to cross-examination by the prosecution, it can surely cut short and curtail the protracted trial if it is introduced at least for trial of rape cases which is bound to reduce the duration of trail and thus offer a speedy remedy by way of a fast track procedure to the Fast Track Court to resort to.
According to the Court considering the consistent recurrence of the heinous crime of rape and gang rape all over the country including the metropolitan cities, it is high time such measures of reform in the Cr. P.C. be introduced after deliberation and debate by the legal fraternity as also all concerned.
Court by order dated 3.8.2013 had issued notice to the Union of India as also the Law Commission of India and all the State Law Commissions and the Law Secretaries of the States for eliciting their views on the subject. The Law Commission of India filed its response to the same, and although in principle agree that the proposed changes in the Cr.P.C. are justified, it is of the opinion that the same might prejudice the investigation of the case by the police.
In fact the newly inserted proviso to S.154(1) [as amended by Criminal law (Amendment) Act 2013,states that the police officer shall get the statement of the person recorded by a Judicial Magistrate under clause (a) of sub-section (5A) of section 164 as soon as possible. According to clause (a) of sub-section (5A) of section 164 ‘in cases punishable under section 354, section 354A, section 3548, 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 which 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’. But the above legislative changes are not discussed in the Judgment.
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