On 8th Oct, the Supreme Court of India in the case of Miss A v. State of Uttar Pradesh and anr, comprising of 3 Judge Bench Justice Uday Umesh Lalit, Justice Vineet Saran and Justice Ravindra Bhat held that the concerned Magistrate may take cognizance of any offence inter alia upon a police report.
Factual Background
On 25.08.2019, the father of the Appellant lodged a Complaint that he had seen a video of the Appellant on her Facebook account alleging that Respondent No.2 and some others had sexually exploited the Appellant and many other girls; that the Appellant was not contactable; that he was apprehending danger to the Appellant; and that prompt action be taken in the matter.
Thereafter, pursuant to a complaint filed by one Mr. Om Singh, Advocate, to the effect that he looked after the legal work of the Ashram run by Respondent No.2; and that an unknown person had threatened that unless Rupees Five Crores were paid, the reputation of Respondent No.2 in the society would be harmed. Said Complaint was immediately. The Complaint filed by the father of the Appellant was registered two days later in respect of offences of abduction and sexual harassment under Sections 506 and 364 of Indian Penal Code. The Facebook video of the Appellant having gone viral, letters were written to this Court by some advocates whereafter Suo Motu Writ Petition (Crl.) No. 2 of 2019 was registered in this Court. On 30.08.2019 it was reported to this Court that the Appellant was found in District Dausa of State of Rajasthan. On 30.08.2019, this Court recorded the statement of the Appellant that she did not intend to go back to Uttar Pradesh but would meet her parents in Delhi. Certain directions were therefore passed.
Special Investigation Team
Accordingly, Special Investigation Team (SIT) was set up and the statement of the Appellant was recorded by Judicial Magistrate under Section 164 of the Code of Criminal Procedure. An application was filed by the Appellant that there were certain lapses while recording her statement under Section 164 of the Code. On 17.09.2019 itself, an application was moved by Respondent No.2 seeking certified copy of the statement of the Appellant under Section 164 of the Code.
The application was rejected by the Additional District and Sessions Judge,. Relying on the decision of this Court in State of Karnataka by Nonavinakere Police vs. Shivanna alias Tarkari Shivanna , it was stated:- “… …If the copy of statement under section 164 is provided at this preliminary stage of investigationthen besides spilling all the beans of investigation before the concerned person(s) who shall also come to know names of all the key witness(es) involved in this case, the health and safety of the victim(s) but also that of all the key witnesses will be in peril. It is also very likely that of all affected and concerned person(s) will leave no stone unturned in influencing the investigation itself and all key witnesses in their favour much before any report is made under S.173 CrPC. All this is surely bound to ‘dent’ the prosecution case. However, once the investigation is over and a report is filed under section 173 of CrPC at that stage the copy of the statement under Section 164 CrPC along with other relevant documents can be asked by the concerned person. In view of the above, application filed by the learned counsel of the applicant Swami Chinmyanand Saraswati to obtain copy of the statement under Section 164 of CrPC is rejected for all the reasons discussed above.”
High Court
The High Court found that the decision of this Court in Shivanna would not get attracted for the following reason:- “It was argued by the learned counsel for the applicant that the said directions were issued only for the police to be followed and not to the Court. I agree with the said argument and I am of the opinion that correct law has been laid down by the Division Bench of this Court in the case of Raju (supra), in view of that it was bounden duty of the trial court to provide a certified copy of the statement of the victim recorded under Section 164 Cr.P.C. to the applicant subject to payment of usual charges. Accordingly, the impugned order is set aside and it is directed that trial court shall provide a certified copy of the statement of victim recorded under Section 164 Cr.P.C. to the applicant subject to payment of usual charges.”
Supreme Court Analysis and Judgment
Supreme Court in its Analyses stated that the Scheme of the relevant provisions of the Code shows that after the conclusion of the investigation, an appropriate report under Section 173 of the Code is to be filed by the police giving information as required by Section 173.
In terms of Section 190 of the Code, the concerned Magistrate may take cognizance of any offence inter alia upon a police report. At the stage of exercise of power under Section 190 of the Code, as laid down by this Court in number of decisions, the notable being the decision in Bhagwant Singh vs. Commissioner of Police , the Magistrate may deem fit that the matter requires further investigation on certain aspects/issues and may pass appropriate direction. It is only after taking of the cognizance and issuance of process that the accused is entitled, in terms of Sections 207 and 208 of the Code, to copies of the documents referred to in said provisions.
The reason that weighed with the High Court in placing reliance on the decision of the Division Bench of the High Court rendered in the year 2012 which was before the directions were passed by this Court in Shivanna was completely incorrect. As logical extension of the directions passed by this Court, no person is entitled to a copy of statement recorded under Section 164 of the Code till the appropriate orders are passed by the court after the charge-sheet is filed.
The right to receive a copy of such statement will arise only after cognizance is taken and at the stage contemplated by Sections 207 and 208 of the Code and not before. The application of Respondent No.2 was, therefore, rightly rejected by the Additional Sessions Judge and the order so passed did not call for any interference by the High Court.
Judgment
The Supreme Court in its Judgment stated that “the High Court completely erred in appreciating the directions issued by this Court, especially in a matter where the offences alleged against accused are of sexual exploitation.”
In such matters utmost confidentiality is required to be maintained. In our view, the High Court completely failed in that behalf.
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