PIYUSH RANJAN vs STATE OF KARNATAKA
- Court
- Karnataka High Court
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IN THE HIGH COURT OF KARNATAKA AT BENGALURU
R
RD
DATED THIS THE 3 DAY OF JULY, 2026
BEFORE
THE HON'BLE MR. JUSTICE M.NAGAPRASANNA
WRIT PETITION NO. 7053 OF 2024 (GM-RES)
BETWEEN:
PIYUSH RANJAN
AGED ABOUT 48 YEARS
S/O GOPAL CHANDRA GHOSH
ST
RESIDING AT NO.2, 1 CROSS
BEHIND KMF, MARATHAHALLI
BENGALURU – 560 037.
CURRENTLY RESIDING AT FLAT NO.312,
‘B’ BLOCK,
PAVANI SAROVAR APARTMENTS
NALLURAHALLI, WHITEFIELD
BENGALURU – 560 066.
…PETITIONER
(BY MS.SPOORTHI COTHA AND
SRI HARI OM TIWARI, ADVOCATES)
AND:
1.
STATE OF KARNATAKA
BY VARTHUR PS
REPRESENTED BY
SPECIAL PUBLIC PROSECUTOR
HIGH COURT BUILDING
BENGALURU – 560 001.
2. LALGIRI
AGED ABOUT 31 YEARS
S/O INDRAGIRI
ND
RESIDING AT 2 CROSS
Digitally signed
by PADMAVATHI
B K
Location: High
Court of
Karnataka
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VAJAPEYINAGAR
BOMMANAHALLI
BENGALURU – 560 068.
3. WASIM PASHA
AGED ABOUT 38 YEARS
S/O MOULA ALI ATTHARA
RESIDING AT NO.30, RAM NIVAS
TH
7 ‘A’ CROSS, KALAPPA LAYOUT
BASAVANAGAR
BENGALURU – 560 037.
…RESPONDENTS
(BY SMT.RASHMI PATEL, HCGP FOR R-1;
R3 IS SERVED AND UNREPRESENTED)
THIS WP IS FILED UNDER ARTICLES 226 AND 227 OF
THE CONSTITUTION OF INDIA, READ WITH SECTION 482 OF
CR.P.C., PRAYING TO CALL FOR RELEVANT RECORDS; QUASH
THE ORDER DATED 20.02.2024 PENDING ON THE FILE OF THE
ADDL.DISTRICT AND SESSION JUDGE AND SPECIAL JUDGE
FOR POCSO CASES(FTSC-II), BENGALURU RURAL, FOUND AT
ANNEXURE-G.
THIS PETITION, COMING ON FOR ORDERS, THIS DAY,
ORDER WAS MADE THEREIN AS UNDER:
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CORAM: HON'BLE MR. JUSTICE M.NAGAPRASANNA
ORAL ORDER
The petitioner - defacto complainant is before the Court
calling in question an order of the Additional District and
Sessions Judge and Special Judge for POCSO Cases (FTSC-II),
Bengaluru Rural dated 20-02-2024, by which the concerned
Court declines to summon the Magistrate for examining the
veracity of the statement made by the victim under Section
164 of the Criminal Procedure Code, 1973 (‘Code’ for short).
2. Heard the learned counsel Ms. Spoorthi Cotha
appearing for the petitioner and Smt. Rashmi Patel, learned
st
High Court Government Pleader appearing for the 1
respondent.
3. Facts adumbrated are as follows:
On 14-07-2014, a complaint comes to be registered
alleging sexual assault of the minor daughter of the defacto
complainant at Vibgyor High School. A crime then comes to be
registered in Crime No.155 of 2014 for offences punishable
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under Section 376 of the IPC and Sections 4 and 6 of the
Protection of Children from Sexual Offences Act, 2012 (‘POCSO
Act’ for short). Police conduct investigation and file a charge
sheet for the afore-quoted offences under Section 376 r/w 202
of the IPC and Sections 4, 6 and 21 of the POCSO Act against
respondents 2 and 3 who had allegedly committed the act of
sexual assault on the minor daughter of the petitioner – defacto
complainant. The concerned Court takes cognizance of the
offence and the matter is pending as Spl.C.157 of 2014. What
has driven the defacto complainant to this Court, at this
juncture, is not the merit of the matter, but the proceedings
during the trial, which has by itself taken 10 years to reach this
stage. Therefore, the petitioner-complainant is before the
Court calling in question the statement recorded of the child
victim under Section 164 of the Code and seeks speedy
disposal of the proceedings in Spl.C.157 of 2014. The
co-ordinate Bench of this Court grants an interim order of stay
of further proceedings before the concerned Court, by order
dated 07-03-2024 and the stay is still operating in the case at
hand. The case now is 12 years old.
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4. The learned counsel appearing for the petitioner
Ms. Spoorthi Cotha taking this Court through the statement and
the provisions of the Code and the POCSO Act would submit
that examination of the Magistrate, in the case at hand, is
imperative for twin reasons, one, corroboration of the
statement and two, there is no signature of the victim after
recording of the statement under Section 164 of the Code.
Therefore, if the statement recorded under Section 164 of the
Code, is not given credence, the entire case of the prosecution
would tumble down and the accused would walk away with an
acquittal. It is, therefore, the learned counsel submits that the
examination of the Magistrate, in the aforesaid twin
circumstances, is imperative and the concerned Court has erred
in not permitting the Magistrate to be examined in the case at
hand.
5. Per contra , the learned High Court Government Pleader
st
appearing for the 1 respondent would refute the submissions
in contending that the Magistrate who recorded the statement
under Section 164 of the Code, cannot be summoned for
examination in a routine manner. The learned High Court
Government Pleader further, taking this Court through the
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records would submit that the Magistrate has already recorded
that the victim's signature and the Magistrate's signature was
missing. Therefore in those circumstances, the petitioner is
before this Court on the ground that the Magistrate who
recorded the statement and did not affix his signature or the
signature of the victim is necessary to be brought in for the
evidence to be proved.
6. I have given my anxious consideration to the
submissions made by the respective learned counsel and have
perused the material on record.
7. The afore-narrated facts, at this stage, lie within a
narrow compass. The gravamen of the grievance that has
propelled the de facto complainant to the doors of this
Court is the refusal of the learned Special Court to
summon the learned Magistrate for the purpose of
recording evidence. The edifice of the grievance rests
upon two perceived infirmities in the statement recorded
under Section 164 of the Code. First, it is urged that the
statement does not bear the signature of the victim
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child. Secondly, it is contended that the learned
Magistrate who recorded the statement has also not
appended his signature thereto.
STATUTORY PROCEDURE:
8. The recording of the statement of a child victim or a
witness is not left to the ordinary procedural regime of criminal
law, but is also governed by the special protective architecture
of the POCSO Act. Sections 24, 25 and 26 of the POCSO Act
constitute a self-contained code, meticulously designed to
preserve the dignity and security of the child though the
recording is under Section 164 of the Code.
SECTION 164 OF THE CR.P.C.:
9. Section 164 of the Code which deals with the
procedure for recording of confessions and witness statements
by the Magistrate reads as follows:
" 164. Recording of confessions and statements .—
(1) Any Metropolitan Magistrate or Judicial
Magistrate may, whether or not he has jurisdiction
in the case, record any confession or statement
made to him in the course of an investigation under
this Chapter or under any other law for the time
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being in force, or at any time afterwards before the
commencement of the inquiry or trial:
Provided that any confession or statement made
under this sub-section may also be recorded by
audio-video electronic means in the presence of the
advocate of the person accused of an offence:
Provided further that no confession shall be
recorded by a police officer on whom any power of a
Magistrate has been conferred under any law for the
time being in force.
(2) The Magistrate shall, before recording any such
confession, explain to the person making it that he is not
bound to make a confession and that, if he does so, it
may be used as evidence against him; and the Magistrate
shall not record any such confession unless, upon
questioning the person making it, he has reason to believe
that it is being made voluntarily.
(3) If at any time before the confession is recorded,
the person appearing before the Magistrate states that he
is not willing to make the confession, the Magistrate shall
not authorise the detention of such person in police
custody.
(4) Any such confession shall be recorded in the
manner provided in Section 281 for recording the
examination of an accused person and shall be signed by
the person making the confession; and the Magistrate
shall make a memorandum at the foot of such record to
the following effect:—
“I have explained to (name) that he is not bound to
make a confession and that, if he does so, any confession
he may make may be used as evidence against him and I
believe that this confession was voluntarily made. It was
taken in my presence and hearing, and was read over to
the person making it and admitted by him to be correct,
and it contains a full and true account of the statement
made by him.
(Signed) A.B.
Magistrate.”
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(5) Any statement (other than a confession)
made under sub-section (1) shall be recorded in
such manner hereinafter provided for the recording
of evidence as is, in the opinion of the Magistrate,
best fitted to the circumstances of the case; and the
Magistrate shall have power to administer oath to
the person whose statement is so recorded.
(5-A)( a ) In cases punishable under Section 354,
Section 354-A, Section 354-B, Section 354-C,
Section 354-D, sub-section (1) or sub-section (2) of
Section 376, Section 376-A, Section 376-AB, Section
376-B, Section 376-C, Section 376-D, Section 376-
DA, Section 376-DB, Section 376-E or Section 509 of
the Indian Penal Code (45 of 1860), the Judicial
Magistrate shall record the statement of the person
against whom such offence has been committed in
the manner prescribed in sub-section (5), as soon
as the commission of the offence is brought to the
notice of the police:
Provided that if the person making the statement
is temporarily or permanently mentally or physically
disabled, the Magistrate shall take the assistance of
an interpreter or a special educator in recording the
statement:
Provided further that if the person making the
statement is temporarily or permanently mentally or
physically disabled, the statement made by the
person, with the assistance of an interpreter or a
special educator, shall be videographed.
( b ) A statement recorded under clause ( a ) of a
person, who is temporarily or permanently mentally
or physically disabled, shall be considered a
statement in lieu of examination-in-chief, as
specified in Section 137 of the Indian Evidence Act,
1872 (1 of 1872) such that the maker of the
statement can be cross-examined on such
statement, without the need for recording the same
at the time of trial.
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(6) The Magistrate recording a confession or statement
under this section shall forward it to the Magistrate by
whom the case is to be inquired into or tried."
In terms of Section 164(1) of the Code a Judicial Magistrate is
empowered to record a confession or statement made during
the course of investigation or at any time prior to the
commencement of the inquiry or trial. Section 164(5) mandates
that every statement, other than a confession, shall be
recorded in the manner prescribed for recording evidence, as
the Magistrate considers best suited to the circumstances of the
case. Such magistrates would also have the power to
administer oath to the maker of the statement.
Section 164(5-A) which was introduced subsequently, to afford
greater protection to victims of sexual offences, obligates the
Judicial Magistrate to record the statement of the victim at the
earliest upon the offence being brought to the notice of the
police. The statements of victims under Section 164(5-A) is to
be recorded following the procedure provided under Section
165(5).
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RECORDING OF STATEMENT OF THE CHILD:
10. Chapter VI of the POCSO Act deals with the procedure
for recording statements of child victims/witnesses. Sections
24, 25 and 26 of Chapter VI of the POCSO Act read as follows:
“Chapter VI
PROCEDURES FOR RECORDING STATEMENT OF
THE CHILD
24. Recording of statement of a child.—(1)
The statement of the child shall be recorded at the
residence of the child or at a place where he usually
resides or at the place of his choice and as far as
practicable by a woman police officer not below the
rank of sub-inspector.
(2) The police officer while recording the statement of the
child shall not be in uniform.
(3) The police officer making the investigation, shall,
while examining the child, ensure that at no point of time
the child come in the contact in any way with the
accused.
(4) No child shall be detained in the police station in the
night for any reason.
(5) The police officer shall ensure that the identity of the
child is protected from the public media, unless otherwise
directed by the Special Court in the interest of the child.
25. Recording of statement of a child by
Magistrate .— (1) If the statement of the child is
being recorded under Section 164 of the Code of
Criminal Procedure, 1973 (2 of 1974) (herein
referred to as the Code), the Magistrate recording
such statement shall, notwithstanding anything
contained therein, record the statement as spoken
by the child:
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Provided that the provisions contained in the first
proviso to sub-section (1) of Section 164 of the
Code shall, so far it permits the presence of the
advocate of the accused shall not apply in this case.
(2) The Magistrate shall provide to the child and his
parents or his representative, a copy of the
document specified under Section 207 of the Code,
upon the final report being filed by the police under
Section 173 of that Code.
26. Additional provisions regarding statement
to be recorded.—(1) The Magistrate or the police
officer, as the case may be, shall record the
statement as spoken by the child in the presence of
the parents of the child or any other person in
whom the child has trust or confidence.
(2) Wherever necessary, the Magistrate or the
police officer, as the case may be, may take the
assistance of a translator or an interpreter, having
such qualifications, experience and on payment of
such fees as may be prescribed, while recording the
statement of the child.
(3) The Magistrate or the police officer, as the case
may be, may, in the case of a child having a mental
or physical disability, seek the assistance of a
special educator or any person familiar with the
manner of communication of the child or an expert
in that field, having such qualifications, experience
and on payment of such fees as may be prescribed,
to record the statement of the child.
(4) Wherever possible, the Magistrate or the police
officer, as the case may be, shall ensure that the
statement of the child is also recorded by audio-video
electronic means.”
A careful and meaningful reading of the aforesaid
provisions leaves little room for doubt. The POCSO Act,
despite its elaborate procedural safeguards, nowhere
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mandates that a child whose statement is recorded
under Section 164 of the Code must append his or her
signature to such statement. This legislative omission is
neither inadvertent nor accidental. It is a conscious
recognition of the peculiar vulnerability of child victims.
The POCSO Act extends its protective mantle to every
child below eighteen years of age. A victim could be a
toddler scarcely capable of speech, a child of tender
years unable to comprehend the significance of a
signature, or an adolescent traumatised by the very
incident that necessitates the recording of the
statement. To insist upon the signature of every child,
irrespective of age, maturity or mental condition, would
be to import into the statute a requirement which the
legislature, in its wisdom, deliberately refrained from
engrafting.
SUMMONING OF THE MAGISTRATE:
11. The question now is, whether a Magistrate who
records a statement under Section 164 of the Code can
thereafter be summoned to depose regarding the
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circumstances of such recording is no longer res integra . The
issue received exhaustive consideration at the hands of the
Division Bench of the High Court of Madras in the case of
MURUGASAMY V. STATE, REP. BY INSPECTOR OF
1
POLICE , wherein, the Division Bench observes as follows:
“.…. .…. .….
a. The Section 164, Cr.P.C. — Statement of
victim/Witness :
6. The institution of Police preceded the formation of the
Magistracy as we know it today. The Magistracy in the
Madras Presidency owes its formation to Madras Regulation
No. VI of 1802 A.D. - “A regulation for the guidance of
Magistrates in apprehending persons charged with crimes
or offences and bringing them to trial”. It may be
interesting to extract Articles IV & V of the above
Regulation:
.…. .…. .….
7. A reading of the above provision in the 1882
Code shows that after recording the Statement, the
Magistrate was directed to send the same to the
Magistrate by whom the case is to be enquired into
or tried.
8. Since 1882, in all the subsequent Codes, we
have been following the same template upto the
present Code, viz. , the 1973 Code, of course, with
some variations in individual provisions. We are
emphasising this to show that after the repeal of the
1861 Code, there has been a slow and steady
separation of the Police from the Magistracy and
after the Constitution of India came into force, in
tune with Article 50, the present 1973 Code has
1
2017 SCC OnLine Mad 38316
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completed the separation between the functions of
the Police and the Magistracy.
9. Even during the currency of the 1898 Code, the
Privy Council recognised the cleavage in the
functions, as could be seen from the Statement of
law in Emperor v. Khwaja Nazir Ahmad , AIR 1945 PC
18, wherein, it has been held that the functions of
the judiciary and the Police are complementary and
not overlapping.
10. As described above, at one point of time, the
Magistracy actively assisted the Police and slowly, its role
got defined and a stage came where the Magistrates were
required to aid the Police in the investigation of offences by
performing the following functions, inter alia :
a. Recording the Statement of Witnesses
under Section 164, Cr. P.C.
b. Recording the Confession of the Accused under
Section 164, Cr. P.C.
c. Recording the Dying Declaration
d. Conducting Test Identification Parade
e. Sending the weapons, handwritings, signatures
and samples to the expert for opinion
11. The aforesaid magisterial functions are vestiges of
the 1861 Code. The raison d'etre for the Police seeking
the help of the Magistrate to have the Statement of a
Witness recorded under Section 164, Cr. P.C. is not
far to seek. A Statement recorded by the Police under
Section 161(3) of the Code can be used only to
contradict the maker in the Witness box and it cannot
be used to corroborate him. The Police felt the need
to have the Section 164, Cr. P.C. Statement of a
Witness, whom they suspect would turn hostile
during trial, recorded so that he would think twice
before resiling from his earlier version and if he does
not resile, his Section 164, Cr. P.C. Statement can be
used for corroborating his evidence in the trial. If he
resiles, he may be prosecuted for perjury.
.…. .…. .….
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13. When a Magistrate records the Statement of a
Witness, it has a higher sanctity than the one
recorded by the Police. The oft-levelled allegation
that the Police themselves have recorded facts under
Section 161(3), Cr. P.C. that were not stated by the
Witness thus stands mitigated when the Magistrate
records the Statement.
.…. .…. .….
21. From a reading of the above, it is seen that after
recording the Statement, the Magistrate is required to send
the same immediately to the jurisdictional Magistrate.
However, in State of Karnataka by Nonavinakere
Police v. Shivanna alias Tarkari Shivanna , (2014) 8 SCC
913, the Supreme Court has issued certain directions in
exercise of powers under Article 142 of the Constitution of
India which read as under:
“ 10. On considering the same, we have accepted the
suggestion offered by the learned Counsel, who appeared
before us and hence, exercising powers under Article 142 of
the Constitution, we are pleased to issue interim directions
in the form of mandamus to all the Police Stations in
Charge in the entire country to follow the directions of this
Court which are as follows:
10.1. 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
Section 164, Cr. P.C. A copy of the Statement under
Sections 164, Cr. P.C. should be handed over to the
investigating officer immediately with a specific
direction that the contents of such Statement under
Section 164, Crl.P.C. should not be disclosed to any
person till Charge-sheet/report under
Section 173, Cr. P.C. is filed.
10.2. The Investigating Officer shall as far as
possible take the victim to the nearest Lady
Metropolitan/preferably Lady Judicial Magistrate.
10.3. 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
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Metropolitan/preferably Lady Judicial Magistrate as
aforesaid.
10.4. If there is any delay exceeding 24 hours in taking
the victim to the Magistrate, the investigating officer should
record the reasons for the same in the case diary and hand
over a copy of the same to the Magistrate.”
(emphasis supplied)
22. In fact, the Supreme Court, in Paragraph No. 20
in Shivanna (supra), directed that the Police throughout
the country should follow the mandate strictly. Thus, the
Supreme Court has, by Judicial Order, expanded the
contours of Section 164(6), Cr. P.C. by mandating the
Magistrate recording the Statement under Section 164, Cr.
P.C. to hand over a copy to the Police immediately.
Therefore, we propose to harmonise
Section 164(6), Cr. P.C. and the Supreme Court
mandate in Shivanna (supra) by directing the
Magistrate recording a Statement under Section 164
of the Code to take two photocopies of the
Statement, and after certifying them, issue one to the
Investigating Officer, keep the other in his custody
and then send the original to the jurisdictional Court.
How this method proposed by us will enure to the
benefit of the Accused also can be best explained by
referring to another case that was dealt with by one
of us (P.N. Prakash, J.).
.…. .…. .….
24. Yet another disheartening part is that the
Magistracy seems to be oblivious of the significance
of the amendments that have been introduced in
Section 164, Cr. P.C. by the Criminal Law
(Amendment) Act (13 of 2013) with effect from
3.2.2013, after the Nirbhaya episode and the
consequent Justice Verma Committee Report on
Amendments to Criminal Law (23rd January 2013) ,
which read as follows:
“ (5-A) (a) In cases punishable under Section 354,
Section 354-A, Section 354-B, Section 354-C, Section 354-
D, sub-section (1) or sub-section (2) of Section 376,
Section 376-A, Section 376-B, Section 376-C, Section 376-
D, Section 376-E or Section 509 of the Penal Code, 1860,
the Judicial Magistrate shall record the Statement of the
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person against whom such offence has been committed in
the manner prescribed in sub-section (5), as soon as the
commission of the offence is brought to the notice of the
Police:
Provided that if the person making the Statement is
temporarily or permanently mentally or physically disabled,
the Magistrate shall take the assistance of an interpreter or
a special educator in recording the Statement:
Provided further that if the person making the
Statement is temporarily or permanently mentally or
physically disabled, the Statement made by the person,
with the assistance of an interpreter or a special educator,
shall be videographed.
(b) A Statement recorded under Clause (a) of a person,
who is temporarily or permanently mentally or physically
disabled, shall be considered a Statement in lieu of
examination-in-chief, as specified in Section 137 of
the Indian Evidence Act, 1872 (1 of 1872) such that the
maker of the Statement can be cross-examined on such
Statement, without the need for recording the same at the
time of trial.”
25. Indubitably, Section 164(5-A), Cr. P.C. is of
far-reaching significance in relation to trial of a rape
case. Section 164(5-A), Cr. P.C. states that if the
maker of the Statement is temporarily or
permanently, mentally or physically disabled, the
Statement made by such a person shall be
considered as substantive evidence by the Trial Court
and the maker need not be examined-in-chief, but,
can be subjected to cross-examination on the basis
of the Statement recorded under Section 164(5-
A), Cr. P.C. This is to save the victim from the
embarrassment of explaining to the Trial Court,
repeatedly, as to how she was sexually assaulted.
26. In the case at hand, as already stated, the
victims, viz. , “A”, “B”, “C” & “D” are deaf and dumb
children whose Statements were recorded by the
Magistrate under Section 164, Cr. P.C. with the help of an
Interpreter. Hence, it is open to the Trial Court to treat
those Statements as their examination-in-chief, if they
satisfy the conditions stated in Section 164(5-A)(a) & (b)
and the said Witnesses can be subjected cross-examination
straightaway.
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27. The provisions of Section 376, I.P.C., have
been telescoped into the POCSO Act and when a rape
is committed on a minor girl, it is considered as an
aggravated form of crime. Therefore, whatever the
Supreme Court has stated in Shivanna (supra), would
apply in all its fours for investigation under the
POCSO Act as well, especially in the light of Section
25 of the POCSO Act which reads as follows:
“ 25. Recording of Statement of a child by
Magistrate. — (1) If the Statement of the child is
being recorded under Section 164 of the Code of
Criminal Procedure, 1973 (2 of 1974) (herein
referred to as the Code), the Magistrate recording
such Statement shall, notwithstanding anything
contained therein, record the Statement as spoken
by the child:
Provided that the provisions contained in the
First Proviso to sub-section (1) of Section 164 of
the Code shall, so far it permits the presence of the
advocate of the Accused shall not apply in this case.
(2) The Magistrate shall provide to the child
and his parents or his representative, a copy of the
document specified under Section 207 of the Code,
upon the Final Report being filed by the Police
under Section 173 of mat Code.”
28. At this juncture, it is pertinent to point out that one
should not get confused with the demand of the Accused
for Statements, because, an Accused will not be entitled to
these records until the Final Report is filed, as laid down by
a Full Bench of this Court in Selvanathan @
Raghavan v. State by Inspector of Police , 1988 LW (Cri)
503.
29. The Accused does not stand on the same
footing as that of the Investigating Officer because
the Investigating Officer is enjoined by Chapter XII
of the Cr. P.C. to conduct investigation and recording
of Statement under Section 164, Cr. P.C. is part of the
investigation process and the Investigating Officer is
required to complete the investigation expeditiously
and file the Final Report before the jurisdictional
Court.
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30. We have also referred to the cumbersome
procedure by which the Police are required to first
make an application to the Chief Metropolitan
Magistrate/Chief Judicial Magistrate, as the case may
be, for nominating a Magistrate for the purpose of
recording the Section 164, Cr. P.C. Statement and
thereafter, taking the victim/Witness to the said
Magistrate for the said purpose. This will
undoubtedly take more than 24 hours and it will fall
foul of the Supreme Court's direction
in Shivanna (supra).
.…. .…. .….
40. As regards the POCSO Act, Sections 25 & 26
place certain additional safeguards while recording
the Statement of a child victim under Section 164, Cr.
P.C. Section 28 of the POCSO Act provides for
creation of a Special Court by a process of
designation. Section 33 of the POCSO Act, empowers the
Special Court to take cognizance of any offence without the
Accused being committed to it for trial. Thus, for all
practical purposes, a Special Court that has been created in
a district by designating a Court of Sessions, becomes a
Court of Original jurisdiction and the Special Judge is
invested with the powers of a Magistrate. That is why,
when an FIR is registered under the POCSO Act, the same
is sent to the jurisdictional Special Court and not to the
jurisdictional Magistrate. In In Re : the Registrar
(Judicial), High Court, Madras-600 104 (supra), the
Division Bench has held that a Special Court is empowered
to pass Orders of remand under Section 167, Cr. P.C. Thus,
when Section 167, Cr. P.C. has been made applicable to
the Special Courts, there can be no fetters in extending the
provisions of Section 164(1), Cr. P.C. to the Special Courts
as well, for the purpose of recording the Statement of
victims/Witnesses.
.…. .…. .….
46. A Division Bench of this Court, in R.
Murugesan v. State , (2014) 1 LW (Cri) 339, in which, one
of us (P.N. Prakash, J.) was a part, has elaborately
discussed the evidentiary value of the Statement of a
Witness recorded under Section 164, Cr. P.C. Despite
the directions of the said Division Bench that the
Magistrate recording the Statement under
Section 164, Cr. P.C. need not be examined as a
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Witness, the essence of those directions has not
percolated into the Subordinate Judiciary. In the said
Judgment, the Division Bench has set out the
procedure as to how Public Prosecutors in the Trial
Courts should deal with a Witness, vis-a-vis , his
Statement recorded under Section 164, Cr. P.C. The
Division Bench has placed reliance upon the
Judgment of the Supreme Court in State of
Delhi v. Shri Ram Lohia , AIR 1960 SC 490, and the
Division Bench Judgment of the Andhra Pradesh High
Court in Bashapaka Laxmiah v. State of Andhra
Pradesh , 2001 Cri LJ 4066, to conclude that a
Magistrate recording the Statement of a Witness
under Section 164, Cr. P.C. need not be examined as
a Witness in the trial of the case. We are extracting
below the relevant passages from Shri Ram Lohia (supra)
and Bashapaka Laxmiah (supra):
Shri Ram Lohia :
“Statements recorded under Section 164 of the Code
are not substantive evidence in a case and cannot be
made use of except to corroborate or contradict the
Witness. An admission by a Witness that a Statement
of his was recorded under Section 164 of the Code and
that what he had stated there was true would not
make the entire Statement admissible; much less could
any part of it be used as substantive evidence in the
case.
A Judge commits an error of law in using the
Statement of a Witness under Section 164 as a
substantive evidence in coming to the conclusion that
he had been won over.”
Bashapaka Laxmiah :
“ 18. Repeatedly, we have issued Instructions
that Statement under Section 164, Cr. P.C. is not
a substantive piece of evidence. It is not
necessary to call the Magistrate to give evidence
to prove Section 164-Statement. Statements
under Section 164, Cr. P.C. are available to the
defence for contradiction by obtaining the
certified copies. The Section 164Statement
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recorded by the Magistrate is a public document.
Such practice, hereinafter, be stopped.”
47. In Re:— To issue certain Guidelines regarding
inadequacies and deficiencies in Criminal Trials , 2017
SCC OnLine SC 298, the Supreme Court has called for
remarks from various stakeholders on the suggestions
made by Justice Basant, a retired Judge of the Kerala High
Court, for streamlining and putting in place good practices
in the conduct of Criminal trials. One such suggestion is as
under:
“ 11. The practice of omnibus marking of Section 164-
Statement of Witness deserves to be deprecated. The
relevant portion of such prior Statements of living
persons used for contradiction or corroboration under
Section 145/157 of the Evidence Act deserves to be
marked separately and specifically.”
48. In the light of the above discussion, we seek
to build upon the Division Bench Judgment of this
Court in Murugesan (supra) by holding that even in
cases, where, the Witness completely denies having
given a Statement under Section 164, Cr. P.C. the
Magistrate need not be examined as a Witness and
the factum of the Witness having given such a
Statement to the Magistrate and the contradiction
between his evidence and his previous Statement can
be proved in the examination of the Investigating
Officer, on whose sponsorship, the said Witness was
produced before the Magistrate for the purpose of
recording his Statement. This, in our considered
opinion, will be in consonance with the observations
of the Privy Council in Nazir Ahmad v. The King
Emperor , AIR 1936 PC 253; and Kashmira
Singh v. State of Madhya Pradesh , (1952) 1 SCC
275 : AIR 1952 SC 159, about which, we shall discuss
in detail in the subsequent paragraphs.
49. A Statement recorded under Section 164, Cr.
P.C. is a Public document within the meaning of
Section 74(1)(iii) of the Evidence Act as held by a
Full Bench of this Court in State of
Madras v. Krishnan , AIR 1961 Mad 92. The original of
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the Statement, which would form part and parcel of
the Court records, is a primary evidence under
Section 62 of the Evidence Act for proving the fact
that the said Witness had appeared before the
Magistrate on the date found thereon and had given
a Statement, but, it does not prove the veracity of its
contents.
50. We now give our reasons for directing the
Judicial Officers to take two photocopies of the
documents like Section 164, Cr. P.C.—Statement,
Dying Declaration and Test Identification Parade
Report. During the hearing of Crl.O.P. No. 5233 of
2010, it was brought to the notice of a learned Single
Judge of this Court (S. Nagamuthu, J., as His
Lordship then was) that Dying Declarations,
Section 164, Cr. P.C. Statements and Test
Identification Parade Reports are being sent by the
recording Magistrates to the jurisdictional Courts by
ordinary post, resulting in those important
documents getting lost in transit. It was also brought
to the notice of the said learned Judge that in a
particular case, the Dying Declaration was lost in
transit. Pursuant to the directions issued by the
learned Single Judge, the High Court issued a Circular
in P. Dis. No. 152/2010 dated 13.12.2010 by which
Magistrates have been directed to send these
important documents through a Special Messenger or
through Registered Post with Acknowledgment Due,
to the jurisdictional Court. Therefore, as a measure of
abundant caution, it will be desirable to take two
photocopies and after certifying them, one should be
furnished to the Investigating Officer free of cost and
the other should be retained by the Magistrate so
that if the original is lost in transit, there will be a
back-up.
51. As held by a Full Bench of this Court
in Selvanathan @ Raghavan (supra), Dying Declaration,
164 Cr. P.C.—Statement and Confession Statement and
Test Identification Parade Report are documents which
cannot be shared with the Accused until the Final
Report is filed. If the certified copies of these
documents are directed to be taken for the purpose
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of issuing to the Police, there is every possibility of
leakage via the Copyist Department of the Court. As
discussed by us above, these documents are
confidential documents till the filing of the Final
Report and they are sine qua non for the
Investigating Officer and he cannot be ping ponged
for getting certified copies of these documents
through the Copyist Department of the Court.
Therefore, it is desirable that the photocopies are
taken under the direct supervision of the Judicial
Officer.
To summarise:
•
A Statement of a Witness/Victim can be
recorded under Section 164, Cr. P.C. only at
the instance of the Investigating Officer of
the case.
•
It is not necessary for the Investigating Officer to
approach the CMM/CJM with an Application for
nominating a Magistrate to record the Statement
of a Witness/Victim under Section 164, Cr. P.C.
•
A Magistrate, whether he has got jurisdiction or
not, to Inquire into or try the case, can record the
Statement of a Witness/Victim under
Section 164, Cr. P.C. on the request of the
Investigating Officer of the case.
•
The Presiding Officer of a Special Court which has
been empowered to take cognizance of an offence
without there being a need for committal may
also record the Statement of a Witness/Victim
under Section 164, Cr. P.C. on the request of the
Investigating Officer of the case.
•
After recording the Statement of a
Witness/Victim under Section 164, Cr.
P.C. the Judge/Magistrate shall arrange to
take two photocopies of such Statement,
under his direct supervision and certify the
same as true copies.
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•
He shall furnish one such certified
photocopy of the Statement to the
Investigating Officer, free of cost,
immediately, with a specific direction to the
latter to use it only for the purpose of
investigation and not to make its contents
public, until the investigation is completed
and Final Report filed.
•
The other Certified Photocopy of such
Statement shall be kept in a sealed cover in
the safe custody of the Judge/Magistrate.
•
If the Magistrate who had recorded the
Section 164, Cr. P.C.-Statement is not the
jurisdictional Magistrate, he shall send the
original Statement to the jurisdictional
Court, either through a Special Messenger or
by Registered Post with Acknowledgment
Due.
•
If the Judge/Magistrate who had recorded
the Section 164, Cr. P.C.-Statement is
himself the jurisdictional Magistrate, he
shall keep the original of the Statement in
the case records. ”
The Division Bench, after traversing through the historical
evolution of the Magistracy, the gradual constitutional
separation between investigative and judicial functions, the
object underlying Section 164 of the Code, and the evidentiary
significance of statements recorded thereunder, delineated the
limited circumstances in which the Magistrate who records such
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a statement may be summoned as a witness.
12. The principles enunciated therein commend
complete acceptance. The Division Bench unmistakably
underscores that the Magistrate is not to be summoned
merely because a party entertains a speculative
apprehension regarding the authenticity of the
statement or seeks to cure perceived procedural
irregularities. The judicial act of recording a statement
under Section 164 of the Code enjoys a presumption of
regularity, and the sanctity attached to such proceedings
cannot be lightly diluted by routinely compelling judicial
officers to enter the witness box.
13. The afore-quoted judgment of the Division Bench of
the High Court of Madras was rendered following an earlier
judgment of another Division Bench of the same High Court in
2
the case of R. MURUGESAN v. STATE , wherein the Division
Bench while elucidating the procedure to be followed for
2
2014 SCC OnLine Mad 273
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marking and proving witness statements recorded under
Section 164 of the Code, has observed as follows:
“…. …. ….
10. A statement under Section 164, Cr.P.C
is not substantive evidence. What is the meaning
of the expression “Substantive Evidence”? The
Evidence Act does not define this. It is the
creature of Judiciary and its meaning is traceable
to the definition of the word Evidence in Section
3 of the Evidence Act.
““Evidence” means and includes—
(1) All statements, which the Court
permits or requires to be made before it by
witnesses, in relation to matters of fact under
inquiry;
such statements are called oral evidence;
(2) All documents including electronic
records produced for the inspection of the
Court;
such documents are called documentary
evidence.”
11. Oral evidence means statements made by a
witness in the witness stand on oath in the Court
which conducts the inquiry or trial in connection with
matters of fact. This is called Substantive evidence. It
should not be confused with the expression Substantial
evidence. Substantial evidence falls within the province
of appreciation of evidence. Statements of witnesses in
the Trial Court about facts they have perceived by
senses is Substantive evidence.
12. A statement under Section 164, Cr.P.C.,
1973 is recorded by a Magistrate during the
investigation of a case under Chapter XII of the
Code of Criminal Procedure. The Magistrate is not
conducting an inquiry in relation to matters of
fact like a Trial Court. He merely records the
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statement of the persons on a request made by
the Investigating Officer.
13. The witness, who gave the statement
under Section 164, Cr.P.C., should tell the facts
known to him again as evidence before the Trial
Court. After narrating the facts, he should depose
that he had already stated the same thing earlier
before the Magistrate. Then the Trial Court
Prosecutor should show him the Section 164-
Statement and prove it as an exhibit through
him.
14. The narration of the events by the
witness in the Trial Court is Substantive
evidence. Then his further statement before the
Trial Court that he told the same facts earlier to
the Magistrate is also a Substantive piece of
evidence. To corroborate and prove that he in
fact gave a statement to the Magistrate, his
Section 164-Statement should be shown and
marked and proved through him. Why should it be
shown and marked through him? Because Section 157,
Evidence Act states:
“ 157. Former statements of Witness
may be proved to corroborate later testimony
as to same fact .— In order to corroborate the
testimony of a witness, any former statement
made by such witness relating to the same
fact, at or about the time when the fact took
place, or before any authority legally
competent to investigate the fact, may be
proved.”
15. A statement recorded under Section
164, Cr.P.C., 1973 is a former statement given
before an authority, namely a Magistrate, who is
legally competent to record the statement by
virtue of the power conferred upon him by
Section 164, Cr.P.C., 1973 in order to aid the
investigation conducted under Chapter XII of the
Code. Section 157, Evidence Act says that the
former statement must be proved. Therefore the
witness, who gave the Section 164-Statement
should be made to prove it while marking the
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statement through him. If the witness admits in
his evidence before the Court that he gave a
former statement to the Magistrate and the
statement shown to him is that, then the Section
164-Statement stands proved. In that case the
Magistrate, who recorded the Section 164-
Statement need not be examined.
16. If the witness completely denies that
he gave a former statement before the
Magistrate, then the Prosecutor should dispute it
and suggestions should be put to him that he did
give a statement and his signature in the
statement should be marked . If he denies the
signature also, then that also should be disputed
and suggestions that the signature found in the
Section 164-Statement is that of his should be
put to him. Thereafter the Magistrate should be
examined and the Section 164-Statement should
be marked and proved. The Investigating Officer
should also say that on his request the
Magistrate recorded the statement of that
witness on such and such date.Only this will
complete the circle in a case where the witness
denies everything.Even if this process is
completed and the Section 164-Statement is
proved, then also the Section 164-Statement
cannot be treated as substantive evidence and
the Accused be convicted based on it. The Court
can only give a finding that the witness, who
gave the Section 164-Statement is a liar and take
action against him for giving false evidence.
In State of Delhi v. Shri Ram , AIR 1960 SC 490, it has
been held:
“ Statements recorded under
Section 164 of the Code are not
substantive evidence in a case and
cannot be made use of except to
corroborate or contradict the witness. An
admission by a witness that a statement
of his was recorded under Section 164 of
the Code and that what he had stated
there was true would not make the entire
statement admissible; much less could
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any part of it be used as substantive
evidence in the case.
A Judge commits an error of law in
using the statement of a witness under
Section 164, as a substantive evidence in
coming to the conclusion that he had been
won over.”
17. A statement under Section 164, is a
corroborative piece of evidence. It corroborates
the substantive piece of evidence in the Court,
namely the evidence of the witness that he told
the same facts earlier to a Magistrate. A
corroborative piece of evidence can only
corroborate a substantive piece of evidence and
not another corroborative piece of evidence. In
other words the 164, statement of ‘A’ cannot
corroborate the complaint given by ‘A’ to the Police
that formed the basis for registering the FIR.
18. The credit of a witness can be impeached
under Section 155(3) of the Evidence Act by proof of
former statements which are inconsistent with any part
of his evidence. The procedure to bring on record the
contradictions is provided by Section 145 of the
Evidence Act:
“ 145. Cross-examination as to previous
statements in writing .— A witness may be
cross-examined as to previous statements
made by him in writing or reduced into
writing, and relevant to matters in question,
without such writing being shown to him, or
being proved; but if it is intended to
contradict him by the writing, his attention
must, before the writing can be proved, be
called to those parts of it which are to be used
for the purpose of contradicting him.”
19. For example, if the witness has stated in the
Complaint and Section 164-Statement that ‘A’ gave
the lethal blow on the head but in the Witness Box, if
he says that ‘B’ gave the lethal blow on the head, then
there is contradiction between the Complaint and
Section 164-Statement on one hand and the
substantive evidence in the witness stand on the other
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hand. Many a time defence counsel remain silent in the
fond hope that they can highlight the contradiction by
simply reading to the Judge and comparing the former
statements (Complaint and Section 164-Statement)
and the deposition of the witness. This is
impermissible. The corroborative evidence namely the
former statement should be put to him and his
attention should be drawn to the contradiction
between what he stated in the former statement and
the substantive evidence. In the above example he
should be asked, you have stated in the Court that ‘B’
inflicted the lethal blow, but in your Complaint and
Section 164-Statement you have stated ‘A’ has
inflicted the lethal blow, is it not? Defence counsel will
get scared to ask this question because of fear that he
may explain away. For that sake mandates of Section
145, Evidence Act cannot be jettisoned. If it wants to
contradict the witness with a former statement there is
no escape route other than Section 145 of the
Evidence Act. Only contradictions between two
substantive evidences can be read out to the judge.
For example, in a case, if PW1 says in his evidence
that ‘A’ gave the lethal blow and PW2 says that ‘B’
gave the lethal blow, then there are two contradictory
substantive pieces of evidences. Then the defence
Counsel can read PW1 and PW2's evidence and show
the contradictions.
20. In some Courts, the Prosecution, at the
commencement of the examination itself would show
the Section 164-Statement to the witness and ask
him:
“Is this your statement”?;
Answer:“Yes”;
Then mark it through him without
anything more and argue that the prosecution
has proved the facts stated in the Section
164-Statement. This procedure is incorrect
because Section 164, statement is not
substantive evidence. Proving the factum of
having given a statement to the Magistrate is
different from proving the facts contained in
the statement.
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21. Why do Police have the statement of a
witness recorded under Section 164? A Full Bench of
this Court in State of Madras v. G. Krishnan , AIR 1961
Mad 92, has succinctly answered this question in the
following words:
“ 18. ………The object of recording a
statement under Section 164, Crl.P.C. are :
(1) to use them as confession in case the
person making them is ultimately charged
with an offence, and (2) to deter a witness
from changing his version later by sucumbing
to temptations, influences, or blandishments.”
In the same Judgment the Full Bench has held
that a Section 164-Statement is a Public Document
within the meaning of Section 74(iii) of the Evidence
Act. Section 80 of the Evidence Act raises a
presumption that a Statement or Confession by any
prisoner or Accused person, taken in accordance with
law and purporting to be signed by any Judge or
Magistrate is genuine. A confession duly recorded by a
Magistrate in accordance with Section 164, Cr.P.C. will
come under the protective umbrella of the
presumption under Section 80 of the Evidence Act. We
see no reason as to why the protection of Section 80,
Evidence Act be denied to a statement of a witness
recorded under Section 164, Cr.P.C. The presumption
under Section 80, Evidence Act can by no stretch of
imagination extend to the statement of facts contained
in the Section 164-Statement. Presumption under
Section 80, is only for the genuineness of the
document and not to its contents.
22. Judicial time of Magistrates can be
saved substantially if the practise of examining
them in the Trial Court to prove the recording of
Section 164-Statement is given up. We hold that
Trial Courts should summon the Magistrate, who
recorded the Section 164-Statement only when
the witness denies or disowns the statement.The
Andhra Pradesh High Court in Bashapaka
Laxmiah v. State of Andhra Pradesh , 2001 Crl. LJ
4066, has lamented thus:
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“ 18. Repeatedly, we have issued
instructions that statement under Section
164, Cr.P.C. is not a substantive piece of
evidence. It is not necessary to call the
Magistrate to give evidence to prove
Section 164-Statement. Statements
under Section 164, Cr.P.C. are available
to the defence for contradiction by
obtaining the certified copies. The
Section 164, statement recorded by the
Magistrate is a public document. Such
practice, hereinafter, be stopped.”
Of course, we do not agree with the observation in the
Judgment that the defence can obtain certified copies
of it because under Section 207(iv) Cr.P.C., 1973,
Court is bound to supply the Section 164-Statements
to the Accused.”
The Division Bench in the afore-quoted judgment observes that
a statement recorded under Section 164 of the Code is not
substantive evidence, the substantive evidence being the
testimony of the witness before the concerned Court. To prove
a statement recorded under Section 164 of the Code, it must be
shown to and marked through its maker, who must then
acknowledge having made the statement before the Magistrate
and identify the same. Once this is done, the statement stands
proved and may be used for the purpose of trial. Consequently,
the Magistrate who recorded the statement should not be
summoned to mark such statements and should only be
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summoned when the witness disputes or denies having made
such statement.
14. The circumstances obtaining in the case at hand fall
far short of those exceptional situations contemplated by the
Division Benches of the High Court of Madras. The solitary
submission advanced before the learned Special Court was
that, since the learned Magistrate had not appended his
signature, he ought to be summoned for examination. Such a
proposition, if accepted, would strike at the very foundation of
the principles expounded by the Division Benches of the High
Court of Madras and convert an extraordinary course into an
ordinary procedural ritual. This Court is, with profound respect,
in complete agreement with the exposition of law rendered
therein, and finds no reason whatsoever to depart from the
same.
15. The Division Bench in R. MURUGESAN supra
categorically holds that the witness statements under Section
164 of the Code can be marked through its maker, therefore,
the apprehension expressed by the learned counsel for the
petitioner that the statement recorded under Section 164 of the
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Code may ultimately be deprived of evidentiary value is, at
present, no more than a speculative anxiety unsupported either
by fact or by law. The stage for evaluating the evidentiary
worth of the statement has not yet arisen. Should the victim,
during the course of trial, resile from the statement, or should
the accused seek to impeach its evidentiary value by relying
upon the absence of the signatures of either the child or the
Magistrate, appropriate questions may then arise for
consideration before the trial Court. That eventuality remains
entirely conjectural at this juncture.
16. Even otherwise, the statutory scheme of the POCSO
Act and Section 164 of the Code, does not oblige a child victim
to subscribe his or her signature to a statement recorded under
Section 164 of the Code. Equally, neither do the provisions of
the POCSO Act and Section 164 of the Code prescribe the
affixture of the Magistrate's signature as an indispensable
condition precedent, for examining the validity of such recorded
statements, in the manner sought to be canvassed before this
Court. The submission, therefore, neither finds support in the
statutory text nor in the judicial precedents governing the field.
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SPEEDY TRIAL:
17. The other submission concerns the constitutional
imperative of a speedy trial. The chronology of events is not in
dispute. The crime was registered in the year 2014. What
has unfolded thereafter is a tragedy that ought not to
have found a place in the administration of criminal
justice. For more than a decade, the proceedings have
languished in the corridors of the concerned Court,
meandering from one adjournment to another, until they
have ultimately reached this Court on an issue wholly
collateral to the merits of the prosecution. Such
procrastination is not merely regrettable; it is deeply
disquieting.
18. The case at hand is not one involving an
ordinary offence. It concerns the alleged rape of a child,
barely 6 years of age. Every adjournment granted
without compelling justification has not merely
postponed a hearing; it has prolonged the trauma of a
child who entered the criminal justice system as a victim
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and has remained captive to it for over ten years. Justice
delayed, in cases of this nature, does not remain a mere
procedural lapse - it assumes the character of a
continuing injustice.
19. The reasons for the delay may indeed be manifold.
Yet, whatever be their provenance, they cannot eclipse the
solemn obligation cast upon every criminal Court to zealously
guard against avoidable adjournments. The learned trial Court
ought to have remained vigilant against repeated and
indiscriminate adjournments, particularly in a prosecution
under the POCSO Act. Every adjournment, in such cases, has
consequences that travel far beyond the case diary. It
threatens the very search for truth.
20. Even otherwise, the mandate of the POCSO Act is
that the trial should be concluded within one year. It shocks
the conscience of the Court that it is pending for the last 12
years. Nothing can be more appalling than case concerning
rape of a minor child, pending in the Court for 12 long years.
Section 35 of the POCSO Act reads as follows:
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" 35. Period for recording of evidence of child
and disposal of case .—(1) The evidence of the child
shall be recorded within a period of thirty days of the
Special Court taking cognizance of the offence and
reasons for delay, if any, shall be recorded by the
Special Court.
(2) The Special Court shall complete the trial, as
far as possible, within a period of one year from
the date of taking cognizance of the offence ."
Section 35(2) of the POCSO Act envisages expeditious disposal
of cases under the POCSO Act, by requiring the Special Court
to, as far as possible, conclude the trial within a period of one
year from the date of taking cognizance of the offence, it is not
one year, it is not two years, it is 12 long years of pendency.
21. It becomes apposite to refer to the judgment of the
Apex Court in the case of ALAKH ALOK SRIVASTAVA v.
3
UNION OF INDIA , wherein the Apex Court has issued
directions for speedy disposal of cases under the POCSO Act.
The Apex Court observes as follows:
“…. …. ….
25. It is submitted by Mr Srivastava that in both the
States, the cases are pending at the evidence stage
beyond one year. We are absolutely conscious that
Section 35(2) of the Act says “as far as possible”.
Be that as it may, regard being had to the spirit of the
3
(2018) 17 SCC 291
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Act, we think it appropriate to issue the following
directions:
25.1. The High Courts shall ensure that the cases
OCSO
registered under the P Act are tried and
disposed of by the Special Courts and the Presiding
Officers of the said courts are sensitised in the
matters of child protection and psychological
response.
25.2. The Special Courts, as conceived, be
established, if not already done, and be assigned
the responsibility to deal with the cases under
the P OCSO Act.
25.3. The instructions should be issued to the
Special Courts to fast track the cases by not
granting unnecessary adjournments and following
the procedure laid down in the P OCSO Act and thus
complete the trial in a time-bound manner or within
a specific time-frame under the Act.
25.4. The Chief Justices of the High Courts are
requested to constitute a Committee of three Judges to
regulate and monitor the progress of the trials under
the P OCSO Act. The High Courts where three Judges are
not available the Chief Justices of the said courts shall
constitute one Judge Committee.
25.5. The Director General of Police or the officer of
equivalent rank of the States shall constitute a Special
Task Force which shall ensure that the investigation is
properly conducted and witnesses are produced on the
dates fixed before the trial courts.
25.6. Adequate steps shall be taken by the High
Courts to provide child-friendly atmosphere in the
Special Courts keeping in view the provisions of
the P OCSO Act so that the spirit of the Act is
observed ."
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22. Later, the Apex Court in the case of ALARMING RISE
IN THE NUMBER OF REPORTED CHILD RAPE INCIDENTS,
4
IN RE , while taking note of the statistics showing huge
pendency of trials under the POCSO Act, issued directions to
the Central and State Governments for ensuring that trials for
offences under the POCSO Act are expeditiously completed, in
accordance with the timelines provided under the POCSO Act.
The Apex Court observes as follows:
“…. …. ….
2. This report shows a shocking state of affairs.
What to talk of trials, in 20% of the cases even
investigation is not completed within one year.
Virtually, no support persons are provided and no
compensation is paid to the victims. Almost two-
third of the cases are pending trial for more than
one year.
3. It appears that at all stages of dealing
with P OCSO cases commencing with the
investigation up to the stage of trial, the timelines
stipulated under the Act have not been complied
with. From the report of Shri Rathi, it appears that one
major reason for the inability of the stakeholders to
meet the deadline stipulated under the Act, is lack
of awareness and lack of dedication in completing
investigation, etc. within the time-frame stipulated
and also inadequacy of the number of courts which
has resulted in cases remaining pending beyond the
period mandated for completion of trial under the
Act.
4
(2020) 7 SCC 108
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4. We hope and expect that the Central Government
will play a much more proactive role to ensure that
trials of cases arising out of the P OCSO Act are
completed in the time-frame laid down in the Act.
5. We direct all the State Governments as well as the
Union of India to do what is required to be done to ensure
that all stages of investigation as well as trial, as
contemplated under the Act, are completed within the
time-frame by creation of additional force for
investigation. We further direct the Union of India and the
State Governments to take steps for sensitisation of
officials associated with the investigation and also for
creation or assignment of dedicated courts to
try P OCSO cases on top priority so that charge-sheets are
filed within the mandatory period and trials are completed
within the time-frame contemplated under the Act."
23. The right to a speedy trial is not a procedural luxury
that may be extended or withheld at convenience. It is an
indispensable facet of Article 21 of the Constitution. While the
right is ordinarily spoken of in the context of the accused, it
assumes equal, if not greater significance in prosecutions
involving sexual offences against children. A child who has
suffered the indignity of sexual abuse cannot be
compelled to relive the trauma endlessly, because the
criminal justice system has surrendered to the culture of
adjournments. Every unnecessary adjournment
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compounds the original injury and converts the process
itself into an instrument of oppression.
24. The Apex Court, yet again, in the case of CENTRAL
BUREAU OF INVESTIGATION v. MIR USMAN ALIAS ARA
5
ALIAS MIR USMAN ALI , following the earlier judgment in
HUSSAINARA KHATOON v. HOME SECRETARY, STATE OF
BIHAR, PATNA, (1980) 1 SCC 81 , has held as follows:
“…. …. ….
20. Section 309 of the Cr.P.C. (now Section
346 of the BNSS, 2023) contains a mandatory
provision that in every inquiry or trial, the
proceedings shall be held as expeditiously as
possible, and in particular, when the examination
of witnesses has once begun, the same shall be
continued from day to day basis until all the
witnesses in attendance have been examined
unless the Court finds the adjournment of the case
beyond the following day to be necessary for
reasons to be recorded. The emphasis of this
Section cannot be overlooked and must not be
overlooked by any Judicial Officer who tries a
criminal case, much less by the higher officers, like
the Sessions Judges presiding over the Sessions
Court, where serious offences are being tried day
in and day out.
21. It is true that the court has the discretion to
defer the cross-examination. But we do not approve the
practice prevailing in the trial courts across the country
that the examination-in-chief of a particular witness is
5
2025 SCC OnLine SC 2066
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recorded in a particular month and his cross-examination
would follow in particular subsequent month. The legal
position is that once the examination of witnesses starts
the court concerned must continue the trial from day to
day until all the witnesses in attendance have been
examined (except those whom the public prosecutor has
given up). We are at pains to note that it is almost a
common practice and regular occurrence that the trial
courts flout the said mandate with impunity. Even when
witnesses are present, cases are adjourned on far less
serious reasons or even on flimsy grounds. The
legislature itself has frowned at granting adjournment on
flimsy grounds.”
22. In Mohd. Khalid v. State of W.B. , (2002) 7
SCC 334, a three Judge Bench of this Court did not
approve the deferment of the cross-examination of the
witness for a long time and, deprecating the said practice,
it observed as follows:
“ Unnecessary adjournments give a scope
for a grievance that the accused persons get a
time to get over the witnesses. Whatever be the
truth in this allegation, the fact remains that
such adjournments lack the spirit of Section 309
of the Code. When a witness is available and his
examination in chief is over, unless compelling
reasons are there, the trial court should not
adjourn the matter on the mere asking .”
23. In Akil alias Javed v. State of Delhi , (2013) 7
SCC 125 : (2012) 11 Scale 709, this Court, after
surveying the earlier pronouncements, has stressed on
the compliance of the procedure and expressed its
anguish that the Trial Courts are not strictly
adhering to the procedure prescribed under the
provisions contained in Section 231 along with
Section 309 of the Cr.P.C. respectively and further
emphasised that such adherence can ensure speedy
trial of cases and also rule out the possibility of any
maneuvering taking place by granting undue long
adjournment for mere asking.
24. In Hussainara Khatoon v. Home
Secretary, State of Bihar, Patna , (1980) 1 SCC 81,
this Court held that an expeditious trial is an
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integral and essential part of the fundamental right
to life and liberty enshrined in Article 21 of the
Constitution.
25. In A.R. Antulay v. R. S. Nayak , (1992) 1 SCC
225, this Court declared that speedy trial is not only
the right of the accused but is also in public interest
and that the right to speedy trial flowing from
Article 21 encompasses all the stages, namely, the
stage of investigation, inquiry, trial, appeal, revision
and retrial.
26. In Sher Singh v. State of Punjab , (1983) 2
SCC 344, this Court sounded the following note of caution
against delay of criminal trials:
“ 16… The essence of the matter is that
all procedure, no matter what the stage,
must be fair, just and reasonable…Article 21
stands like a sentinel over human misery…
It reverberates through all stages the trial ,
the sentence, the incarceration and finally, the
execution of the sentence .”
27. To the same effect are the decisions of this
Court in Javed Ahmed Abdul Hamid Pawala v. State of
Maharashtra , (1985) 1 SCC 275 and Triveni Ben v. State
of Gujarat , (1989) 1 SCC 678. Even in cases where the
accused had been enlarged on bail the right to a speedy
trial was held to be a part of the fundamental right under
Article 21 of the Constitution. The decisions of this Court
in Biswanath Prasad Singh v. State of Bihar , 1994 Supp
(3) SCC 97 and Mahendra Lal Das v. State of Bihar ,
(2002) 1 SCC 149 may be referred to in this regard.
28. It is in the light of the settled legal
position that it is no longer possible to question the
legitimacy of the right to speedy trial as a part of
the right to life under Article 21 of the Constitution.
The essence of Article 21 of the Constitution lies not
only in ensuring that no citizen is deprived of his
life or personal liberty except according to
procedure established by law, but also that such
procedure ensures both fairness and an expeditious
conclusion of the trial.
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29. In Lt. Col. S.J. Chaudhary v. State (Delhi
Administration) , (1984) 1 SCC 722 : AIR 1984 SC 618, it
was held that it is most expedient that the trial
before the Court of Session should proceed and be
dealt with continuously from its inception to its
finish. Not only will it result in expedition, it will
also result in the elimination of manoeuvre and
mischief. It will be in the interest of both the
prosecution and the defence that the trial proceeds
from day to day. It is necessary to realise that
Sessions cases must not be tried piecemeal. Once
the trial commences, except for a very pressing
reason which makes an adjournment inevitable, it
must proceed de die in diem until the trial is
concluded.
30. In Gurnaib Singh (supra) this Court observed
in para 34 as under:
“ We have expressed our anguish,
agony and concern about the manner in
which the trial has been conducted. We hope
and trust that the trial courts shall keep in
mind the statutory provisions and the
interpretation placed by this Court and not
be guided by their own thinking or should
not become mute spectators when a trial is
being conducted by allowing the control to
the counsel for the parties. They have their
roles to perform. They are required to
monitor. They cannot abandon their
responsibility. It should be borne in mind
that the whole dispensation of criminal
justice system at the ground level rests on
how a trial is conducted. It needs no special
emphasis to state that dispensation of
criminal justice system is not only a concern
of the Bench but has to be the concern of the
Bar. The administration of justice reflects its
purity when the Bench and the Bar perform
their duties with utmost sincerity. An
advocate cannot afford to bring any kind of
disrespect to fairness of trial by taking
recourse to subterfuges for procrastinating
the same .”
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31. The right to speedy trial is implicit in
Article 21 of the Constitution of India. The first
written articulation of the right to speedy trial
appeared in 1215 in the Magna Carta: “We will sell
to no man, we will not deny or defer to any man
either justice or right.” Article 21 of the Indian
constitution declares that “no person shall be
deprived of his life or personal liberty except
according to the procedure laid by law .” Justice V.R.
Krishna Iyer in Babu Singh v. State of U.P. , (1978) 1 SCC
579 : AIR 1978 SC 527 remarked, “Our justice system
even in grave cases, suffers from slow motion
syndrome which is lethal to “fair trial” whatever the
ultimate decision. Speedy justice is a component of
social justice since the community, as a whole, is
concerned in the criminal being condignly and
finally punished within a reasonable time and the
innocent being absolved from the inordinate ordeal
of criminal proceedings. ” In the case of Sheela Barse v.
Union of India , (1986) 3 SCC 632 : (1986) 3 SCR 562,
this Court has held that the right to speedy trial is a
fundamental right. Further it was stated by this
Court that the consequence of violation of the
fundamental right to speedy trial would be that the
prosecution itself would be liable to be quashed on
the ground that it is in breach of fundamental
right. ”
The Apex Court, commencing from HUSSAINARA KHATOON
supra and continuing through a long and unbroken line of
precedents culminating in MIR USMAN ALI supra , has
repeatedly reminded all criminal Courts that expedition
is not a matter of administrative convenience, but a
constitutional command. The mandate contained in
Section 309 of the Code, now Section 346 of the BNSS, is
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couched in unmistakably mandatory language. Once the
examination of witnesses commences, the trial is to
proceed from day to day. Adjournments should be
exception; but unfortunately has become a rule. The
Apex Court has repeatedly deprecated this unhealthy
culture of mechanical adjournments and has warned that
such acts of adjournments ultimately becomes a silent
accomplice to miscarriage of justice.
25. Particularly, in prosecutions under the POCSO
Act, the legislature has spoken with unmistakable
clarity. The legislative intent is that trials involving child
victims should receive precedence over all ordinary
criminal prosecutions. The statute contemplates
expeditious investigation, prompt recording of evidence
and conclusion of the trial within the stipulated period,
so that the child is enabled to return to a life of normalcy
at the earliest. The object of the enactment is not merely
to punish the offender, but equally to protect the child
from the debilitating consequences of prolonged criminal
litigation .
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26. The facts obtaining in the case at hand portray a
complete departure from that legislative mandate. A
prosecution which the statute envisages should attain
finality in one year has remained pending for over a
decade. Such delay cannot receive judicial approbation.
It is not merely contrary to the letter of the statute, but
strikes at its very soul. The legislative command has, to
borrow a phrase, been thrown to the winds owing to the
culture of repeated adjournments, nothing can be more
unfortunate than this.
27. In the aforesaid circumstances, while deprecating the
culture of repeated adjournments, this Court considers it
imperative to breathe life into the statutory mandate. It
therefore becomes both appropriate and necessary to direct the
Special Court to conclude the proceedings, uninfluenced by any
observation made on the merits of the case except to the
extent indicated herein.
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28. For the aforesaid reasons, the following:
ORDER
(i) Writ Petition stands disposed , in the light of the
observations made in the course of the order.
(ii) The concerned Court shall now endeavour to
conclude the proceedings within 8 weeks from the
date of receipt of the copy of this order.
(iii) The timeline so fixed is not intended to be
aspirational, but obligatory and shall be adhered to
in its letter and spirit.
(iv) It hardly needs to be observed that the parties to
the lis shall extend their fullest cooperation to
facilitate the expeditious conclusion of the trial.
Should either side indulge in dilatory tactics or
seek unwarranted adjournments, it shall be open
to the learned Special Court to decline such
requests and to adopt every measure permissible
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in law to ensure faithful compliance with the
statutory command and the directions issued
herein.
Consequently, I.A.No.1 of 2025 also stands disposed.
Sd/-
(M.NAGAPRASANNA)
JUDGE
bkp
List No.: 3 Sl No.: 20