Recording The Statement of Rape Victim -under Section 164(5A) (a) of CrPC
Rape is the fourth most common crime against women in India. According to the National Crime Records Bureau 2013 annual report, 24,923 rape cases were reported across India in 2012. Out of these, 24,470 were committed by someone known to the victim (98% of the cases) (Wikipedia, 2017). At least 34,651 cases of rape were reported across India last year; statistics released by the country's National Crime Records Bureau (NCRB) have revealed. The paper makes a core claim with regard to the power of the Magistrate to record the statement of the prosecutrix. Moreover, the Magistrate is duty bound after the Criminal Amendment Act of 2013, to record the statement even when the prosecutrix approaches the Magistrate without being recommended or moved by the Investigation Officer (herein referred IO). The Magistrate is not to exercise his discretion, as granted to him under the general provision of Section 164(5) but is under a statutory obligation to record her statement.
"While a murderer destroys the physical frame of the victim, a rapist degrades and defiles the soul of a helpless female."- Justice Arjit Pasayat
On 25th December, 2012, at 1:00 p.m., PW-30, Shri Pawan Kumar, Metropolitan Magistrate, went to the hospital to record the dying declaration of the prosecutrix. A two Judge Bench of the Supreme Court issued Guidelines in the form of Mandamus to all the police station in charge in the entire country regarding ‘recording statement of Rape Victim’, making it mandatory for the magistrate to record the statement of the prosecutrix. The directions are as follows-
1. 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 S. 164(5) of Code of Criminal Procedure 1973.
The Section states -
2. The Investigating Officer shall as far as possible take the victim to the nearest Lady Metropolitan/preferably Lady Judicial Magistrate.
3. 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 a for the statement of the prosecutrix.
The general rule of the Code of Criminal Procedure provided for two procedures whereby the statement of the rape victim could be recorded. Firstly, the statement can be recorded by the Police officer under Section 162, during an investigation and secondly by the Magistrate under Section 164 of the Cr PC. Further, the Magistrate can record the statement of the victim under two situations either when the Investigation Officer moves for the recording of the statement of the victim or when such a victim approaches the Magistrate on her own for recording her statement under Section 164 of the Code. Prior to the Criminal Amendment Act of 2013, these were the two situations whereby the statement of a rape victim could be recorded, either by the police officer or by the Magistrate.
But After the horrendous incident of gang rape which occurred on 16th December 2012, a committee headed by Justice J.S. Verma was set up to make recommendations to curb the menace. The committee stated that apart from legislative reforms there was a need for fast- track procedure and sensitization of police. The commission submitted its recommendations by identifying ‘lack of good governance’ as the central cause of violence against women and which could be improved in one way- by making it mandatory for the Magistrate to record the statement rather than the police officer recording the same and thus making the statement more credible. Though Justice J. S. Verma Committee wanted to make videography of recording statement from victim, by the Magistrate, mandatory yet the same was made optional in the Criminal Amendment Act, 2013.
The Criminal Amendment Act 2013, among its various sweeping changes, inserted a new provision 5A (a) into the Section 164 of the Cr PC, making it mandatory that when an offence of rape is committed and the same is brought to the knowledge of the police officer he is bound to take the victim to the nearest Judicial Magistrate for recording of her statement.
A question may arise as to why a Magistrate is now made duty bound under Section 164(5A) (a) to record statement while the statements could also be recorded by police under Section 162 of the Code. Apparently Section 145 of the Evidence Act does not distinguish between the statement under Section 162 and statement under Section 164 of the Code and no additional weight-age is given to the statements recorded under Section 164 of the Code for the purpose of contradicting a witness. One of the major purposes for which statements are recorded is for contradiction during cross-examination under Section 145 of the Evidence Act. But while a statement recorded under Section 162 of the Code can be used only for contradiction during the trail, a statement recorded under Section 164(5A) (a) apart from being used for contradiction also serves as substantial evidence and is used for corroboration too and thus is of greater evidential value for the court.
The rationale behind the statement recorded by the Magistrate being a substantial evidence is that when during an investigation police records the statements under Section 162 of the Code they cannot administer oath to the person making statement and cannot obtain his signature, but under Section 164 of the Code, a Magistrate recording the statement of a person can administer oath to him and obtain his signature over the statement. The person making and signing a statement before the Magistrate during the course of the investigation will not disown it and will support the case of the prosecution. Certainly, if a person makes and signs a statement then naturally he comes under moral obligation and chances of his turning hostile will be reduced. In our social condition prevailing in our country tampering of prosecution witnesses is a favorite pastime. So, getting statement recorded by the Magistrate is the recognized method to deter prosecution witnesses from changing their versions subsequently. On the other hand, if she does retract, she will be liable to prosecution for making a false statement under oath (perjury).
The Criminal Amendment Act emphasized that the recording of statements and evidence of the victim and other witnesses multiple times ought to be put to an end. As it is one of the primary reasons for the delay of the trial in rape cases. It surely cut short and curtails the protracted trial of rape cases and reduces the duration of the trail and thus offers a speedy remedy by way of a fast track procedure and makes the procedure less stressful for the prosecutrix.
Common people of India are still apprehensive of police; the working style of the police has been condemned by the Supreme Court in rape cases where they are accused of biases, insensitivity, asking the prosecutrix to give up the case, exerting psychological pressure for effecting an answer, facilitating reconciliation between the attacker and the victim and in certain going to the extent of protecting the perpetrators.. All these considerations regarding the difference in the approach of a Magistrate and a Police Officer in addressing a rape case led the legislators to in cooperate the said amendment making it mandatory for the Magistrate to record the statement at the very first instance without exercising his discretion.
All and sundry cannot approach the Magistrate for the recording of their statement u/s 164 and any witness, unsponsored by the IO/prosecution, cannot seek to get his examination recorded u/s 164 Cr PC.
However, the view that all informants cannot approach the Magistrate on their own for recording the statement, which has held primacy for long, seems to be statutorily diluted in cases concerning crime against women. The amended Section 165(5A)(a) of the Cr PC casts a duty on the Magistrate to record the statement of the persons against whom the offence is committed as soon as the commission of the offence is brought to the notice of the police and this obligation is not contingent on the IO moving an application to that effect. In this regard, it would be incumbent on the area Magistrate to be cognizant of such situations and pass the necessary orders to ensure examination of the witness promptly in such cases. Although, there is no direct decision on this point yet, however, on a purposive reading, the new amendments can be read to have carved out an exception to the rule of sponsorship of witness as a pre-requisite, in cases of women complaining of sexual assault, whose statement can be recorded even without sponsorship by the IO. However, the Magistrate ought to be extremely careful as regards the identity of the witness/complainant before proceeding to record the statement. This ensures that in a case of apathy of the IO to the case, the Magistrate is not to remain a mute spectator and ought to record the statement himself.
Thus a statement under Section 164 may be recorded by a Magistrate not only at the instance of the police but also at the instance of the accused, or the witness or the aggrieved person. It is not necessary at every time that a Magistrate shall record the statement only upon the instance of Police or IO. A statement under Section 164 of the Code has to be recorded either during an investigation or anytime afterward but before the commencement of the inquiry or trial. In the case of Ram Khelawan Singh vs. State of Bihar, it was held that informant's prayer for recording the statement must be allowed even in a case where the investigation is going on. Further in the case of Patiram v. State of Maharashtra, it was observed that - “Magistrate recording statement of the witness who was not sponsored by investigating agency is admissible in evidence”.
In cases punishable under section 354, section 354A, section 354B, section 354C, section 354D, sub- section (1) or sub- section (2) of section 376, section 376B, section 376C, section 376D, section 376E or section 509 of the Indian Penal Code(45 of 1860) , the magistrate shall record the statement of the person against whom such offence has been committed in the manner prescribed in sub- section (5), u/s 164(5A) (a) Cr PC as soon as the commission of the offence is brought to the notice of the police even without the investigating officer moving for it.
When the investigating authority falsely accuses someone of the crime -In Rama v. State of Rajasthan the Court has expressed about the duty of the appellate court in reappraisal of the evidence thus:
It is well settled that in a criminal appeal, a duty is enjoined upon the appellate court to a reappraise the evidence itself and it cannot proceed to dispose of the appeal upon an appraisal of evidence by the trial court alone especially when the appeal has been already admitted and placed for final hearing. Upholding such a procedure would amount to negation of the valuable right of appeal of an accused, which cannot be permitted under law. It is at this stage in rape cases that the statement of the prosecutrix becomes important. Thus the magisterial intervention and reconsideration of the evidence becomes important, even when the case is in appellate stage. Similar principles have been reiterated in Iqbal Abdul Samiya Malek v. State of Gujarat and Bani Singh v. State of U.P..
In the case of Malkhan Singh vs. State of MP it was held that:-
“The prosecutrix had all reason to remember their faces as they had committed a heinous offence and put her to shame. She had, therefore, abundant opportunity to notice their features. In fact, on account of her traumatic and tragic experience, the faces of the appellants must have got imprinted in her memory, and there was no chance of her making a mistake about their identity. And hence the statement of the victim of the crime should be of paramount importance and consideration for the court.”
The new Criminal Amendment Act makes a mandatory provision for recording the statement of the prosecutrix under Section 164(5A) (a) of CrPC by the Magistrate. As soon as the crime (as mentioned under the sub-section 5A (a) in Section 164) is brought to the knowledge of the police officer, he is now made duty bound to take the victim to the nearest Judicial Magistrate for recording her statement. The victim being the informant approaches the court for recording her statement being distressed and aggrieved with the attitude of the investigating agency. Thus a duty is casted over the Magistrate to record her statement.
# Tahhan, Z. India: More than 34,000 cases of rape reported in 2015. Aljazeera (1 September 2016).
# CRIMINAL APPEAL NOS. 607-608 OF 2017
# State of Karnataka v. Shivanna @ Tarkari Shivanna SLP (Cri.) 5073/ 2011.
# Herein referred as Cr.P.C.
# SPECIAL LEAVE PETITION (CRL.) NO. 5073/2011
# J.S. Verma, L. S. Report of the Committee on Amendments to the Criminal Law. (23 January 2013).
# For Rape Victims in India, Police Are Often Part of the Problem. (2013, January 23). The New Yorker. New York: ww.nytimes.com/2013/01/23/world/asia/for-rape-victims-in-india-police-are-often-part-of-the-problem.html.last visited on 3-07-17.
# Jogendra Nahak v. State of Orissa , 1 SCC 272 44 45.
# Chugh, B. (2016). . Retrieved from http://delhicourts.nic.in/ejournals/ROLEOFAMAGISTRATE-FINAL-BHARATCHUGH.pdf
# Kumar Parmar v. State of Rajasthan 12 SCC 406 (2012), 12 SCC 406
# Ram Khelawan Singh Vs. State of Bihar, (2) PLJR 269
# Patiram v. State of Maharashtra , Cri.L.J. 4718
# Rama v. State of Rajasthan, 4 SCC 571 9.
# Iqbal Abdul Samiya Malek v. State of Gujarat, 1 SCC 62111.
# Bani Singh v. State of U.P. , 4 SCC 720 (1996).
# Malkhan Singh vs. State of MP , 5 SCC 746.
# Reshma Khan vs The State Of Jharkhand , Cr. Rev. No. 999