The Supreme Court disposed of a writ petition concerning the re-recording of a victim's statement under Section 164 Cr.P.C. where investigation officers allegedly threatened the victim. The Court held that the Magistrate is not bound by the earlier final report.
Writ petition disposed of; Registry directed to copy order to J.M.F.C., Chandbali.
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WP (CRL) No. 140 of 2020
Heard Mr.S.N.Mishra, learned counsel for the petitioner and Mr. A.K.Nanda, learned Addl. Government Advocate for the State.
As per our direction, the I.I.C., Chandbali P.S. produced the victim girl before the learned J.M.F.C., Chandbali in connection with G.R. Case No.466 of 2020 and her statement under Section 164 Cr.P.C. was recorded. A copy of which has been produced before us by the learned Addl. Government Advocate.
We have carefully examined the copies of the statements of the victim recorded under Section 164 Cr.P.C. On 17.11.2020, the victim has not implicated Badal Biswal who was suspected to be an accused in the aforesaid G.R. case. However, it was brought to our notice in this application of the petitioner that the investigating officer threatened the victim not to depose before the learned Magistrate when she was last produced. Hence, we directed re-recording of her statement under Section 164 Cr.P.C. by the learned J.M.F.C., Chandbali. We find that the victim girl has specifically alleged that one Dukha Das and Chhuapua Das had abducted her forcibly. She also alleges rape against Dukha Das.
Bichi
In such a situation, we are constrained to observe that when any victim girl is produced before the learned Magistrate for recording of her statement under Section 164 Cr.P.C., then it is the duty of the learned Magistrate to ensure that no police officer should remain near her or in the place where the statement is recorded. Such statement should
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invariably be recorded in the Chambers of the learned Magistrate and he/she should take adequate care to ensure that the statement of the victim is voluntary and she is no way threatened by anybody. We are of the opinion that the learned Magistrate should ensure from the victim girl, on her production, if she has been threatened by anybody including the police officers, who are in-charge of the investigation of the case.
In this case, Mr. Mishra, learned counsel for the petitioner submits that in the meantime, the investigating officer has submitted the final report.
Mr. Nanda, learned Addl. Government Advocate submits that the investigating officer has informed him that after re-recording of the statement of the victim under Section 164 Cr.P.C., the case has been re-opened.
However, we are of the opinion that the learned Magistrate is not bound by the earlier final report submitted by the Investigating Officer. In this case, the learned Magistrate should take into consideration the 164 Cr.P.C. statement recorded by the learned J.M.F.C., Chandbali on 15.12.2020 and the medical report prepared by the doctor on the medical examination of the victim on 15.12.2020 and if he finds cognizable case to be made, then he should take cognizance of the same. But the final discretion is with the learned Magistrate which should be judiciously exercised.
With such observation, the writ petition is disposed of.
Registry is directed to communicate a copy of this order to the learned J.M.F.C., Chandbali for reference of the
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G.R. Case No.466 of 2020.
As restrictions are continuing due to COVID-19 pandemic, learned counsel for the parties may utilize the soft copy of this order available in the High Court’s official website or print out thereof at par with certified copies in the manner prescribed, vide Court’s Notice No.4587 dated 25.03.2020.
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S.K. Mishra, J.
……………………… Savitri Ratho, J.
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1 issue framed by the court
Whether the Magistrate is bound by the earlier final report when a statement under Section 164 Cr.P.C. is re-recorded after an allegation of threat to the victim.
1 provisions across 1 enactments
Petitioner
State of Odisha
S.K. Mishra
Savitri Ratho
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
