Allahabad High Court: In a batch of bail applications, wherein the common issue was whether material collected during investigation such as further/subsequent statement given by a victim before Child Welfare Committee (‘CWC’) that she has lived as wife with the accused, would be sufficient evidence for Investigating Officer (‘IO’) to take a different or contrary view of statements of victim recorded under Sections 161 and 164 of the Code of Criminal procedure, 1973 (‘CrPC’), wherein she has either denied or does not refer allegation of physical relationship with accused with or without her consent, Saurabh Shyam Shamshery, J has held that if there is a statement of victim that either they have solemnized marriage or stayed as husband and wife, then there will be a presumption that during stay they have physical relationship except where victim has specifically denied any physical relationship and since consent of minor victim is immaterial, therefore, offence of rape can be made out.
The Court said that it cannot interfere or direct IO to conduct any investigation in a particular manner. However, it does not mean that if any aggrieved party seeks direction for fair investigation, the Court becomes helpless rather it can exercise powers granted under Sections 156 or 482 CrPC or under Article 226 of the Constitution of India, as the case may be.
The Court noted that the provisions of Juvenile Justice (Care and Protection of Children) Act, 2015 (hereinafter referred to as “JJ Act, 2015”) provides statutory obligation on Child Welfare Committee to have interaction with victim to provide her support and also to provide counselling, therefore, any statement of victim recorded before CWC cannot be thrown away and it has certain evidentiary value and it could be made a part of investigation, i.e., part of case diary. Further, Section 19 of Protection of Children from Sexual Offences Act, 2012 (“POCSO Act”) provides a duty on a citizen to inform authority concerned, if any offence is committed on a minor victim.
The Court further stated that victim is entitled to ask IO to record her ‘Mazid Bayan’ or to request IO to produce her before Magistrate concerned for purpose of recording a subsequent statement before him as well as she has also liberty to record her statement before CWC. It may not be ruled out that victim may not be able to say truth before Police as well as before Magistrate, but after counseling she muster strength to say truth before CWC and, therefore, in these circumstances, statement before CWC would be relevant and it will have evidentiary value being a statement recorded under the provisions of JJ Act, 2015. Also, the Trial Court can consider it according to principles of evidence. It may be a valid ground for the Magistrate to record a subsequent statement under Section 164 CrPC.
Thus, the Court concluded the following:
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An IO is under obligation to conduct fair investigation which is an equal right of an accused as well as of victim and hence, IO must follow procedure prescribed under CrPC as well as Police Manual/ Regulation or procedure prescribed under any Special Act.
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IO has liberty to record statement of witnesses more than one time also. Mazid Bayan/ further statement can be recorded to unearth the truth and IO has liberty to carry out investigation on its own way but in a legally permissible way till final report/ charge sheet is filed before Court concerned or under “further investigation”.
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IO cannot record further statement/ Mazid Bayan of victim only for the purpose of clarification or to dilute any statement of victim recorded under Section 164 CrPC with only object to make the accused culpable of an offence.
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CWC is under obligation to provide legal as well as psychological counseling to victim and during this process she may give statement before CWC, however, it would not be a statement recorded under Section 161 CrPC being not recorded by a Police Officer investigating the case.
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Therefore, any statement before CWC cannot be the sole ground to dilute or to take a different view of the statement given by the victim before the Magistrate.
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Medical evidence may be a factor to take a contrary view to the statement of victim recorded under Sections 161 and 164 of CrPC by IO, however, IO must record specific reasons in final report/ charge sheet for such opinion/ view.
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If there is a statement of victim that either they have solemnized marriage or stayed as husband and wife, then there will be a presumption that during stay they have physical relationship except where victim has specifically denied any physical relationship and since consent of minor victim is immaterial, therefore, offence of rape can be made out.
Thus, while taking the above factors into consideration while deciding the bail applications, the Court allowed all the bail applications subject to certain conditions.
[Ajay Diwakar v State of UP, Criminal Misc. Bail Application No. 1777 of 2023, Order dated 03-05-2023]
Advocates who appeared in this case :
Counsel for Applicant:- Advocate Ramesh Kumar , Advocate Arun Kumar Singh, Advocate Vinod Kumar Tirpathi, Advocate Nimesh Kumar Shukla, Advocate Surendra Kumar Tripathi, Advocate Tufail Hasan, Advocate Puneet Kumar, Senior Advocate Saurabh Chaturvedi, Advocate Ravi Prakash Singh , Advocate Pradeep Kumar Bhardwaj, Advocate Dheeraj Kumar Tiwari, Advocate Faizan Habeeb, Advocate Shahabuddin;
Counsel for Opposite Party:- Government Advocates Uttam Singh, Shweta Singh Rana, Abhishek Srivastava,Lalit Kumar,Anoop Tiwari,Bhishm Pal Singh, Vinay Kumar Pal, Dinesh Kumar, Anand Vikram Singh, Ram Sagar Chaudhary, Sunil Kumar Upadhyay.
