Recently, the Allahabad High Court has expounded that "it is the prerogative of the investigating agency to sponsor the witness whose statement they want to record under Section 183 B.N.S.S., therefore the Investigating Officer could not be forced to get the statement of any witness recorded under Section 183 B.N.S.S”.
The decision comes amid concerns about procedural delays and the alleged unavailability of the involved party. The court emphasised the need for fairness and adequate security during these processes.
Brief Facts:
In the present case, the applicant Kajal and Sunil Kumar alias Sunil have filed an application requesting a direction to the Additional Chief Judicial Magistrate to record Kajal’s statement under Section 183 of the Bhartiya Nagrik Sukarsha Sanhita, 2023 (BNSS) and to conduct a medical examination related to Case Crime No. 0320 of 2024. The case is lodged under Sections 137(2) and 87 of the Bhariya Nyay Sahinta, 2023 at Police Station Sandhana, District Sitapur. The applicants are married and living together, but an FIR was filed by Kajal’s father against Sunil and his parents, alleging that Sunil enticed Kajal on August 20, 2024.
Contention of Applicant:
The counsel for the applicant argues that Kajal is ready to cooperate with the investigation and requests that the investigating Officer or Chief Judicial Magistrate be directed to record her statement and arrange her medical examination.
Contention of Respondent:
The counsel for the respondent raised objections regarding the maintainability of the application, arguing that the matter is still under investigation and a charge sheet has not yet been filed. Additionally, the AGA stated that Kajal is currently untraceable, which hinders the recording of her statement and her medical examination.
Observation of the Court:
The court addressed concerns related to the recording of the prosecutrix’s statement and her medical examination in an ongoing investigation. Despite the prosecutrix’s marriage, issues with her unavailability persisted, impacting the progress of the case.
The court observed that the investigation Officer holds discretion over which witness statements to record under Section 183 (BNSS) and cannot be forced to record a statement if the witness is not present. Similarly, the medical examination could not proceed without the prosecutrix’s availability, the court stated that “the statement of prosecutrix recorded under Section 183 B.N.S.S. is concerned the same could not be given in view of the fact that
The decision of the Court:
The court directed the Investigation Officer to record the prosecutrix’s statement and arrange her medical examination once she appears. The court also mandated that her dignity be upheld and adequate security be provided by the S.S.P., Sitapur, to prevent any harassment. The competent court will determine her custody upon her presentation.
Case Title: Kajal & Anr. vs. State Of U.P. & Anr.
Citation: 2024:AHC-LKO:61248
Coram: Justice Saurabh Lavania
Advocate for Applicant: Adv. Vimlesh Kumar Kashyap and Dharmendra Kumar Bhatt
Advocate for Respondent: G.A.
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