Allahabad HC frowns upon legal provisions not being followed in recording statement of rape survivor

The Allahabad High Court has expressed displeasure that in a “majority of cases” the legal provisions mandating that the statement of a rape survivor be recorded by a woman officer and that too through audio-video electronic means were not being followed by the investigation officers.

The court has directed the Uttar Pradesh DGP and Principal Secretary, Home Department to issue guidelines to all district police chiefs to comply with the provisions within two months.

The court also noted that the practice of recording a second statement of the victim under Section 161 of Cr.P.C. after recording her statement under Section 164 was on the “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 statement under Section 164 Cr.P.C,” it said.

The statement under Section 164 Cr.P.C. will prevail over the statement under Section 161, the judge ruled.

Justice Sanjay Kumar Singh passed the order on August 11 while hearing the bail application of a rape accused from Prayagraj.

Counsel for the accused Bulle said that on December 14, 2020, a statement of the victim was recorded under Section 164 of Cr.P.C., in which she alleged that she was raped by Bulle and another man Badal. However, the investigation officer Raj Kishor, presently posted as SHO in Phoolpur, on December 7 recorded the second statement of the victim in which she alleged that only Bulle raped her and that she had made the earlier allegation against Badal on the advice of her counsel. On the said statement, the co-accused Badal was charge-sheeted only under Section 366 of the IPC, kidnapping, abducting or inducing woman to compel her for marriage.

The accused side argued that there was no occasion for the investigating officer to record her second statement under Section 161 and alleged that the IO in collusion with the co-accused Badal did so to minimise the gravity of offence against him.

M.C. Chaturvedi, Additional Advocate General, U.P., submitted before the court that the second statement was recorded by the IO in “good faith in discharge of his duty,” as provided in paragraph 107 of the Police Regulations. He also argued there was no bar for recording the second statement of the victim or prosecutrix. However, he conceded that in this case the second statement of the woman was not recorded by any woman police officer but by Mr. Kishor himself and that it was not recorded by any audio-video electronic means.

Mr. Kishor, realising his mistake, tendered an unconditional written apology and said he will be careful in future, the AAG informed court, insisting that no action be taken against the IO but that the matter would be probed and considered by higher authorities and appropriate action will be taken.

The counsel for the accused said the second statement of the woman was recorded by the IO to “extend undue favour to co-accused Badal.”

The court observed: “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 influence.”