SC: Guidelines for recording statement of a rape victim


Court :
Supreme Court of India

Brief :
The bench comprising of Justice Gyan Sudha Misra and Justice V. Gopala Gowda emphasized that the recording of evidence of the rape victim and other witnesses multiple times is the primary reason for delay of the trial. The bench issued the following guidelines in exercise of powers under Article 142 of the Constitution, the interim directions in the form of mandamus to all the police station in charge in the entire country regarding recording of the statement of a rape victim: (i) Upon receipt of information relating to the commission of offence of rape, the Investigating Officer shall make immediate steps to take the victim to any Metropolitan/preferably Judicial Magistrate for the purpose of recording her statement under Section 164 Cr.P.C. A copy of the statement under Section 164 Cr.P.C. should be handed over to the Investigating Officer immediately with a specific direction that the contents of such statement under Section 164 Cr.P.C. should not be disclosed to any person till charge sheet/report under Section 173 Cr.P.C. is filed. (ii) The Investigating Officer shall as far as possible take the victim to the nearest Lady Metropolitan/preferably Lady Judicial Magistrate. (iii) The Investigating Officer shall record specifically the date and the time at which he learnt about the commission of the offence of rape and the date and time at which he took the victim to the Metropolitan/preferably Lady Judicial Magistrate as aforesaid. (iv) If there is any delay exceeding 24 hours in taking the victim to the Magistrate, the Investigating Officer should record the reasons for the same in the case diary and hand over a copy of the same to the Magistrate. (v) Medical Examination of the victim: Section 164 A Cr.P.C. inserted by Act 25 of 2005 in Cr.P.C. imposes an obligation on the part of Investigating Officer to get the victim of the rape immediately medically examined. A copy of the report of such medical examination should be immediately handed over to the Magistrate who records the statement of the victim under Section 164 Cr.P.C.

Citation :

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICITON

SPECIAL LEAVE PETITION (CRL.) NO. 5073/2011

State of Karnataka by Nonavinakere Police ..Petitioner 

Versus

REPORTABLE 

Shivanna @ Tarkari Shivanna ..Respondent

O R D E R

1. Vide order dated 30.08.2013, we had proposed to 

consider this matter on merit after service of notice to the 

accused-respondent as we felt acutely concerned as to why 

the Union of  India should not  take initiative  and steps to 

evolve a procedure for fast track  justice to be adopted by 

the Investigating Agencies and  the Fast  Tract Courts   by 

proposing  amendments into the Cr.P.C. for speedy justice to 

the victim. 

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2. We had noted that the Fast Tract Courts no doubt 

are  being constituted for  expeditious   disposal  of   cases 

involving the charge of  rape at the trial  stage,  but we are 

perturbed  and anguished  to notice that although there are 

Fast Tract Courts for  disposal  of such cases, we do not yet 

have a fast track procedure  for dealing with cases of rape 

and gang rape lodged under Section 376 IPC  with the result 

that such heinous offences are repeated incessantly.

3. We had further observed that there is a pressing 

need to introduce drastic amendments into the Cr.P.C. in the 

nature of fast tract procedure for Fast Track Courts when we 

considered just and appropriate to issue notice and called 

upon the Union of  India to file its  response as  to why it 

should not take initiative and sincere  steps for introducing 

necessary amendment   into the Cr.P.C.,   1973   involving 

trial   for  the charge of   ‘Rape’  by directing  that  all  the 

witnesses who are  examined in relation to the offence and 

incident   of  rape cases   should be straightway  produced 

preferably before the Lady Judicial Magistrate  for recording 

their statement to be kept in sealed cover and thereafter the 

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same  be  treated  as  evidence  at  the  stage   of  trial  by 

producing the same in record in accordance with law which 

may be put  to test by subjecting  it  to cross-examination.  

We were and are further of the view that the statement of 

victim should  as  far  as  possible   be  recorded  preferably 

before  the  Lady  Judicial  Magistrate  under  Section   164 

Cr.P.C.  skipping  over  the  recording  of  statement  by  the 

Police under Section 161 Cr.P.C. to be kept in sealed cover 

and thereafter the same be treated as evidence  at the stage 

of trial which  may be put to test by subjecting  it to cross-

examination.  We are further of the view that the statement 

of victim should as far as possible  be recorded preferably 

before the Lady Judicial Magistrate under Section 164 Cr.P.C. 

skipping  over  the  recording  of  statement   by  the  police 

under Section 161 Cr.P.C. which is any case is inadmissible 

except  for  contradiction  so  that  the   statement    of  the 

accused thereafter  be recorded under  Section 313 Cr.P.C. 

The   accused then can be committed to the appropriate 

Court   for  trial  whereby the  trial  court  can  straightway 

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allow cross  examination of  the witnesses  whose evidence 

were  recorded earlier before  the Judicial Magistrate.

4. What  we  wished  to  emphasize  is  that  the 

recording  of  evidence  of  the  victim and  other  witnesses 

multiple  times  ought  to  be  put  to  an  end  which  is  the 

primary reason for delay of the trial.  We are of the view that 

if the evidence is recorded for the first time itself before the 

Judicial Magistrate under Section 164 Cr. P.C. and the same 

be  kept  in  sealed  cover  to  be  produced  and  treated  as 

deposition  of  the  witnesses  and  hence  admissible  at  the 

stage of  trial  with liberty to the defence to cross-examine 

them with further liberty to the accused to lead his defence 

witness and other evidence with a right to cross-examination 

by the prosecution,  it  can surely cut  short  and curtail  the 

protracted trial  if  it  is introduced at  least  for  trial  of  rape 

cases which is bound to reduce the duration of trail and thus 

offer a speedy remedy by way of a fast track procedure to 

the Fast Track Court to resort to. 

5. Considering  the  consistent  recurrence  of  the 

heinous crime of  rape and gang rape all  over  the country 

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including the metropolitan cities, we are of the view that it is 

high  time  such  measures  of  reform in  the  Cr.  P.C.  be 

introduced  after  deliberation  and  debate  by  the  legal 

fraternity as also all concerned. 

6. We had therefore issued notice to  the Union of 

India as also the Law Commission of India  and all the State 

Law Commissions and the  Law Secretaries of the States for 

eliciting their  views on the subject.  The Law Commission of 

India filed its response to the same, and although in principle 

agree that the  proposed  changes in the Cr.P.C. are justified, 

it  is  of  the  opinion  that  the  same  might   prejudice  the 

investigation of  the  case   by  the police.   Thereafter,  we 

thought appropriate to invite the views of the legal fraternity 

and  hence  a general notice was issued  to the Members of 

the Bar to assist the Court considering the  importance of the 

issue raised.  

7. We,  thereafter  appointed  the  learned  senior 

counsel  Mr.  Shekhar  Naphade  and   Mr.  U.U.  Lalit,  who 

appeared  and  addressed  this  Court.    Learned  senior 

advocate    Mr.  Shekhar  Naphade   agreed  with  the 

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suggestions given by this Court  that  the statement  of  the 

victim  of  rape  and  gang  rape  may  be  and  should  be 

recorded under Section 164 of the Cr.P.C.  which should be 

placed on record treated as evidence of the victim and may 

later be relied  upon as evidence  and then  the accused may 

be given a chance to cross-examine the prosecution version 

and the evidence recorded at the instance of the victim.

8. Learned senior  counsel Mr. Shekhar Naphade was 

good enough to  give us a brief  note  in this regard.   The 

learned Addl.  Solicitor  General   Mr.  Siddharth Luthra  also 

ably   assisted  us  and  drew  the  attention  of  this  Court 

regarding the implications on the trial in case the statement 

of victim is recorded under Section 164 Cr.P.C. and is made 

admissible for the purpose of trial.

9. On considering the same,  we have accepted the 

suggestion  offered by  the  learned counsel  who  appeared 

before us and hence exercising  powers under Article 142 of 

the Constitution, we are pleased to issue interim directions 

in the form of  mandamus to all the  police station in charge 

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in the entire  country to follow the direction of  this Court 

which are as follows:

(i) Upon receipt of information relating to

the commission of offence of rape, the

Investigating  Officer   shall  make

immediate steps to take   the victim  to

any  Metropolitan/preferably  Judicial

Magistrate for the purpose of recording

her   statement  under  Section  164

Cr.P.C.     A copy  of  the   statement

under  Section  164  Cr.P.C.  should  be

handed  over  to  the  Investigating

Officer  immediately  with  a  specific

direction   that  the  contents  of  such

statement   under  Section 164 Cr.P.C.

should not be disclosed  to any person

till  charge sheet/report  under  Section

173 Cr.P.C. is filed. 

(ii) The Investigating Officer shall as far as

possible   take   the  victim  to  the

nearest  Lady  Metropolitan/preferably

Lady Judicial Magistrate.

(iii)    The Investigating Officer   shall  record

specifically the date and  the time at

which he learnt about the commission

of the offence of rape and the date and

time at which he took the victim to the

Metropolitan/preferably  Lady  Judicial

Magistrate as aforesaid.

(iv) If  there  is  any  delay  exceeding  24

hours  in  taking  the  victim  to  the

Magistrate,  the  Investigating  Officer

should record the reasons for the same 

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in the case diary and hand over a copy

of the same to the Magistrate. 

(v) Medical  Examination  of  the  victim:

Section 164 A  Cr.P.C. inserted  by Act

25  of  2005  in  Cr.P.C.  imposes  an

obligation  on the part of Investigating

Officer  to get  the victim of the rape

immediately medically  examined.   A

copy of  the report  of  such   medical

examination  should  be  immediately

handed  over  to  the Magistrate  who

records the statement   of  the  victim

under Section 164 Cr.P.C.

10. A copy of  this order thus be circulated to all  the 

Director Generals of Police of all the States/Commissioner of 

Police  in  Metropolitan  cities  /  Commissioner  of  Police  of 

Union Territories    who are then directed to  send a copy of 

this  order  to  all  the  police  stations  in  charge  in  their 

States/Union Territories    for its compliance  in cases which 

are   registered on or after the receipt of  a copy of  these 

directions.   Necessary  instructions  by  the  DGPs/ 

Commissioners of  Police   be also issued to all  the police 

station  incharge  by  the  DGPs/Commissioner  of  Police 

incorporating      the directions issued by us  and recorded 

hereinbefore.   

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11. The matter  be posted again after  four  weeks to 

ensure    compliance  of  this  order  by  the  DGS  & 

Commissioners  of  Police  in  the  country  before  the 

appropriate Bench and also for such other further order or 

orders which may be considered necessary.

New Delhi,

April 25, 2014

…………………………….J.

(Gyan Sudha Misra)

…………………………….J.

(V. Gopala Gowda)

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Vineet Kumar
on 01 May 2014
Published in Criminal Law
Views : 5049


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