The High Court of Rajasthan on Thursday consisting of a Single Bench of Justice Sanjeev Prakash Sharma ordered the Judicial Magistrate hearing the Baran rape case to immediately proceed to record the statements of the prosecutrix as per the procedure laid down under Section 26 of the POCSO Act.
The bench ordered the Magistrate to allow the IO's application seeking re-recording of the prosecutrix's statement in the presence of her parents.
It is further directed that in the future, as and when a case relating to POCSO Act comes up before any Magistrate, they are bound to follow the provisions of Section 26 of the POCSO Act while recording the statements under Section 164 Cr.P.C. at the first instance.
The Investigating Officer moved an application before the Learned Magistrate for getting statements under section 164 Cr.PC recorded the minor prosecutrix in terms of section 26 of the POCSO Act in the presence of the parents. However, the Learned Judicial Magistrate has refused to accept the application against which revision was filed before the learned District & Sessions Judge, Baran who has also rejected the revision vide order dated 20.10.2020.
The case pertains to two teenage girls who were allegedly abducted and raped by two youths in the Baran district of Rajasthan.
Learned counsel for the petitioner submitted that the earlier statement recorded under Section 164 Cr.P.C. was not in accordance with the provisions of Section 26 of the POCSO Act, 2012 and therefore, the Investigating Officer was having the right to get the statements of the prosecutrix recorded again before the learned Judicial Magistrate.
Learned counsel for the complainant submitted that mere apprehension that there might be lot number of such applications
being moved by the concerned IO and there is a possibility of the concerned prosecutrix being tutored, cannot be a ground for rejecting such an application.
Learned Public Prosecutor supported the application and also submits that once an Investigating Officer has moved an application, it should be allowed.
The High Court referred to the case of Jogendra Nahak & ors. vs. State of Orissa & Ors. (2000) 1 SCC 272, and ruled "it is the exclusive domain of the IO alone to move an application for getting statement recorded of any witness u/s 164 Cr.P.C. On moving such an application, the Magistrate will have to get the statement recorded".
The High Court relied on the case of Smt. Lada Devi vs. State of Rajasthan, taking into consideration the overall circumstances, this Court directed the concerned IO to get the statement of the girl-prosecutrix again recorded by moving an application under Section 164 Cr.P.C. before the concerned Judicial Magistrate.
The Single Judge said,
"In the present case also, the circumstances show that the prosecutrix, who are minor in age, have not given their statements in terms of Section 26 of the POCSO Act. Provisions of the POCSO Act are mandatory in nature.
In view, thereof, the application moved by the Investigating Officer could not have been rejected on the grounds which do not germane from the facts. Merely because there may be more applications in other cases, the Judicial Magistrate cannot be allowed to shirk from his responsibilities.
Learned District & Sessions Judge ought to have allowed the revision in this regard filed by the Dy. S.P., Baran."
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