The Allahabad High Court on Wednesday termed taking the statement of the rape victim again without audio-video recording by the police investigator in connivance with the accused, when the statement of the rape victim is already recorded, as an abuse of the legal process.
A single-judge bench of Justice Sanjay Kumar Singh passed this order while hearing a Criminal Misc Bail Application filed by Bulle. In pursuant to order dated July 30, 2021 of the Court, Raj Kishore /Investigating Officer of the case, who is present before the high Court, has filed an affidavit of compliance dated August 03, 2021.
M.C. Chaturvedi, Additional Advocate General appearing for the State of Uttar Pradesh, submitted that after recording the statement under Section 164 CrPC of the victim on December 4, 2021, her second statement under Section 161 (1) CrPC was recorded on December 7, 2021 by the Investigating Officer in good faith in discharge of his duty.
He further submitted that there is no bar for recording the second statement of the victim. On putting specific query regarding compliance of 1st and 2nd provision to Section 161(3) CrPC, Chaturvedi has fairly conceded that in this case, second statement under Section 161 of the CrPC of the victim has not been recorded by any woman police officer, but the same has been recorded by Raj Kishore/Investigating Officer.
Chaturvedi admitted that the second statement of the victim was also not recorded by any audio-video electronic means. He also submitted that now the Investigating Officer realizing his mistake tendered his unconditional written apology and he will be careful in future.
Lastly, he insisted for not taking any action against the Investigating Officer assuring the Court that the matter in hand will be examined and considered by the higher authorities and that appropriate action will be taken in the matter.
Counsel for the applicant submitted that the Investigating Officer did not conduct a fair investigation. In order to extend undue favour to co-accused Badal, himself recorded the second statement under Section 161 Cr.P.C. of the victim in the case diary on December 07, 2020, showing that victim in her second statement under section 161 Cr.P.C. has alleged that she in her statement under Section 164 Cr.P.C. had made allegation of rape against co-accused Badal on the advice of her Advocate, but Investigating Officer neither asked the victim to disclose the name of that Advocate nor recorded the statement of victim’s Advocate.
Having heard the argument of the Counsel for the parties and on perusing the affidavit dated August 03, 2021 of the Investigating Officer, the Court find that :-
(i) Second statement dated December 07, 2020 of the victim/prosecutrix was not recorded by a woman police officer, but the same was recorded by Mr. Raj Kishore (I.O.).
(ii) Second statement of the victim was also not recorded by audiovideo means.
(iii) In the affidavit dated August 03, 2020, no explanation has been given for not following the provisions provided in 1 st and 2nd provision to Section 161(3) Cr.P.C.
(iv) The affidavit dated August 03, 2021, it is mentioned that Investigating Officer has compiled the provisions of Section 161(3) Cr.P.C., but the same is not correct averment, which are false on the face of record itself as well as in the light of statement of Mr. Chaturvedi given at the bar, as mentioned above.
“In a criminal offence one of the established canons of just, fair and transparent investigation is the right of accused as well as victim, therefore high responsibility lies upon the Investigating Officer not to conduct an investigation in tainted and unfair manner, which may legitimately lead to a grievance of accused that unfair investigation was carried out with an ulterior motive. It must be impartial, conscious and uninfluenced by any external influences”, the Court said.
The Court held that,
Avoiding any kind of mischief, effort should be made to bring the guilty to law as nobody stands above the law. It is not only the responsibility of the Investigating Officer but as well as that of Courts to ensure fair investigation. The purpose and object of the case diary is to maintain fairness in the investigation, transparency and record for ensuring proper investigation. The proper investigation is one or the essentials of the criminal justice system and an integral facet of rule of law. The investigation is a delicate, painstaking and dexterous process, therefore ethical conduct is also essential and investigation should be free from objectionable features or legal infirmities.
“It would be relevant to mention that 1st and 2nd provision to Section 161(3) Cr.P.C had been inserted by Act 5 of 2009 and Act 13 of 2013 respectively, but the Court has been noticing that in majority of cases, the said provisions are not being followed by the Investigating Officers in true sense and practice of recording second statement under section 161 Cr.P.C. of the victim after recording her statement under Section 164 Cr.P.C. is on higher side and in some cases, conclusions are drawn by the Investigating Officer on the basis of second statement under section 161 Cr.P.C., ignoring the statements under Section under Section 164 Cr.P.C”, the Court observed.
The Court also found that it is common argument on behalf of the prosecution in all such cases that there is no bar for recording the second statement under section 161 Cr.P.C. of the victim.
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In the opinion of the Court, the statement under Section 164 Cr.P.C. will prevail over the statement under Section 161 Cr.P.C.
M. C. Chaturvedi has fairly conceded that 1 st and 2nd proviso to Section 161(3) Cr.P.C. has not been followed in this case and assured the Court that higher authority will certainly look into the matter, therefore the Court is not taking any action leaving it upon the authorities concerned to take appropriate action in the matter, the bench said.
In view of above, personal appearance of Raj Kishore (Investigating Officer of this case) is dispensed with. Exemption application dated August 09, 2021 is disposed of, the Court ordered.
The Court has fixed the next hearing of the petition on September 2.