Rape Survivor's S. 164 CrPC Statement Before Magistrate Is On Higher Pedestal Than Statement Recorded By IO U/S 161 CrPC: Allahabad HC

The Allahabad High Court has observed that the statement made by a rape survivor under Section 164 CrPC before the Magistrate stands on a high pedestal, and a sanctity is attached to such statement recorded during the course of the investigation than that of her statement recorded under Section 161 CrPC by the Investigating Officer. A bench of Justice Ram Manohar Narayan Mishra made this observation while dismissing a criminal revision plea filed challenging an order of the Judicial Magistrate, Saharanpur, wherein the protest petition filed by the revisionist (informant) against the final (closure) report submitted by the police against a rape accused had been dismissed, and the final report had been accepted. Essentially, the Magistrate Court had accepted the final report favouring the accused as the police placed reliance upon the prosecutrix's statement recorded under Section 164 CrPC, in which she denied the commission of the alleged offence against her. The Single Judge specifically noted that the victim had been changing her stand at different stages, and thus, no presumption could be drawn that the prosecutrix's statement recorded by the Magistrate before the court suffered from falsehood or external pressure. In brief, it was the case of the revisionist that he lodged an FIR under Section 363 IPC against the accused (Taushif) with averments that he enticed away his 14-year-old minor girl in January 2021 and committed rape against the victim. In her statement recorded under Section 161 CrPC, the victim said that she was kidnapped by the accused and he committed rape on her, and when she requested them to arrange a call from her family members, the accused,d along with the co-accused, threatened her with life and she was confined for four days. However, she refused medico-legal examination, and later on, in her Section 164 CrPC statement, she gave a clean chit to the accused and deviated from her version under Section 161 CrPC and said that no wrong act was done with her and her father (informant/revisionist) had lodged a false case against the accused due to enmity. Placing reliance on the statement of the victim under Section 164 CrPC and affidavits of the father and Phufa of the victim, submitted final report in favour of the accused persons with finding that their complicity in the disappearance of the victim was not established, and she had left her home on her own as she became disturbed on being rebuked by her parent and went to the place of her bua alone and went back to her house on her own volition. However, the victim herself filed a protest petition before the court of Magistrate against the police's final report in favour of the accused persons, in which she relied on her statement given before the IO under Section 161 CrPC. It was also averred in her protest petition that since her father reconciled the matter fifteen days after the incident with the accused persons, under pressure, she had to depose in favour of the accused persons before the Magistrate and she also had to refuse for medical examination. The magistrate concerned, however, dismissed the protest petition filed by the victim and accepted the final report filed by the police after an investigation of the case on the ground that the victim had exonerated the accused persons in her statement under Section 164 CrPC recorded by Magistrate. Challenging this order, the revisionist and the victim moved the HC, wherein their counsel primarily argued that the trial court had wrongly relied on the victim's statement recorded under Section 164 CrPC and ignored her statement under Section 161 CrPC. In its judgment, the single judge found no illegality in the Magistrate's order. He observed that, as per the HC's 2001 Judgment in the case of Pakhandu v. State of UP, the magistrate had thought it fit to accept the police closure report in favour of the accused persons whose names surfaced during the investigation. The Court also noted that in the instant case, the prosecutrix, though inculpated the named accused and three other accused persons whose names surfaced during investigation in her statement under Section 161 CrPC recorded by the Investigating Officer at the early stage of investigation when police recovered her. However, she exculpated all the accused persons in her statement under Section 164 CrPC recorded by the Judicial Magistrate during the investigation. The Single Judge further added that since the statement made by the prosecutrix/victim under Section 164 CrPC before the Magistrate stands on a higher pedestal than her statement recorded under Section 161 of the Code by the Investigating Officer, the Judicial Magistrate committed no illegality. “The impugned order is within bounds of law and no illegality, irregularity or perversity is found therein. The revision is devoid of merit and deserves to be dismissed,” ...

Rape Survivor's S. 164 CrPC Statement Before Magistrate Is On Higher Pedestal Than Statement Recorded By IO U/S 161 CrPC: Allahabad HC

Sparsh Upadhyay

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