A Single Judge Bench of the Allahabad High Court held that putting questions to the prosecutrix/ victim with regards to the change in the version by her in the statements under Section 161 of the Code and in the statement under Section 164 of the Code clearly shows disrespect to the courts who have recorded the statements under Section 164 of the Code of Criminal Procedure, 1973.
Brief Facts
The Bench was hearing three bail applications that had a common question of law. The Bench did not go into the merits of the case; rather it decided on the common question which emerged. The question before the Court was,
"Whether the Investigating Officer of a case can after recording the statement of a prosecutrix/ victim once u/s 161 of the Code of Criminal Procedure, 1973 ('the Code' for short) who has supported the prosecution case and then in her statement recorded u/s 164 of the Code recorded before a Magistrate has given a different version and more particularly does not state about any wrongful act being committed on her as has been recorded in her statement u/s 161 of the Code earlier, can again interrogate the prosecutrix/ victim u/s 161 of the Code and put specific questions to her pertaining to the two different versions given by her in the said two statements and then record the statements and proceed with the Investigation further?'
Reasoning and Decision of the Court
The Court held that,
"In the matters in hand the prosecutrix/victim after giving her statement under Section 161 of the Code levelling allegations of rape against the accused, has given up the same in her statement recorded under Section 164 of the Code. The Investigating Officer then records the statement of the prosecutrix/victim again under Section 161 of the Code and puts specific questions to her with regards to the said variations in her statements and records her answers to the said questions.
The said action of the Investigating Officer is not appreciable. Putting questions to the prosecutrix/victim with regards to the change in a version by her in the statements under Section 161 of the Code and in the statement under Section 164 of the Code clearly shows disrespect to the courts who have recorded the statements under Section 164 of the Code. The said statements under Section 164 of the Code recorded by Judicial Magistrates is in the discharge of their judicial functions and the act of recording of the said statements was a judicial act which was performed by a public servant while discharging his judicial functions."
The said document is relevant under Section 35 of the Indian Evidence Act and also under Section 72 of the Indian Evidence Act and, as such, assumes the character of being a public document. 11. The statement made by the prosecutrix/victim under section 164 of the Code before the Magistrate stands on a higher pedestal and sanctity during the course of investigation than that of her statement recorded under section 161 of the Code by the Investigating Officer.
"Though the Investigating Agency has unfettered powers to investigate a matter, they cannot on their whims and fancy adopt a procedure that would clearly be challenging the sanctity of an act done by a court of law while the discharge of a judicial function. By putting questions to the prosecutrix/victim in her second statement under Section 161 of the Code after the recording the statement under Section 164 of the Code relating to the different versions in the said two statements, the Investigating Officer cannot frustrate the same and also make an attempt to make the purpose of the said exercise look a farce."
The Court further observed that,
"The act of putting specific questions pertaining to the variations in the said two statements by the Investigating Officer is viewed with an impression of clearly challenging the authority of a judicial act. The Investigating Officers have clearly exceeded their jurisdiction by proceedings to investigate in such a manner. The same appears to be with a sole purpose to frustrate the statements recorded by a Magistrate.
Even the Uttar Pradesh Police Regulations while dealing with the particular duties of Police Officers for "Investigations'' in its Chapter XI do not in any manner authorize Investigating Officers to act as such."
Held
This court thus finds that the manner in which the supplementary statements are recorded and the purpose for the recording of the same are only and solely for frustrating the purpose of statements recorded under Section 164 of the Code and to negate and defeat the earlier statement of the prosecutrix/victim given under section 164 of the Code whether it is in favour or against the accused otherwise the sanctity of the statement under section 164 of the Code will lose its value. The same is neither the intent of the Investigation nor is the purpose of it.
The Director-General of Police, Uttar Pradesh Lucknow is directed to look into the said new trend of Investigation as adopted and issue suitable guidelines for such matters so that the sanctity and authority of judicial proceedings are maintained and they should not be frustrated by any act done during Investigation.
Case Details
Case Name: DHARMENDRA @ PATRA V. STATE OF UP
Date of Decision: OCTOBER 1, 2021
Bench: HON’BLE JUSTICE SAMIT GOPAL
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