TUTU DEBANATH vs STATE OF ODISHA

Court
Odisha High Court

Signature Not Verified
Digitally Signed
Signed by: BHABAGRAHI JHANKAR
Reason: Authentication
Location: ORISSA HIGH COURT, CUTTACK
Date: 26-May-2026 16:09:47
IN THE HIGH COURT OF ORISSA AT CUTTACK
CRLMC No.574 of 2026
(In the matter of an application under Section 482 of Criminal
Procedure Code, 1973/Section 528 of the Bharatiya Nagarik
Suraksha Sanhita, 2023).
Tutu Debanath …. Petitioner(s)
-versus-
State of Odisha …. Opposite Party (s)



Advocates appeared in the case through Hybrid Mode :

For Petitioner(s) : Mr. Balaram Nayak, Adv.

For Opposite Party (s) : Mr. Debasish Nayak, AGA






CORAM:
DR. JUSTICE SANJEEB K PANIGRAHI



DATE OF HEARING:-31.03.2026
DATE OF JUDGMENT:-15.05.2026


Dr. Sanjeeb K Panigrahi, J.

1. The Petitioner has instituted the present Criminal Miscellaneous Case
under Section 482 of the Code of Criminal Procedure, 1973/ Section
528 of the Bharatiya Nagarik Suraksha Sanhita, 2023, invoking the
inherent jurisdiction of this Court seeking quashing of the order dated
08.01.2026 passed by the learned S.D.J.M., Kendrapara in G.R. Case
No.1644 of 2025 arising out of Jamboo Marine P.S. Case No. 173 of
2025. The Petitioner has also prayed for a direction to the learned
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Signed by: BHABAGRAHI JHANKAR
Reason: Authentication
Location: ORISSA HIGH COURT, CUTTACK
Date: 26-May-2026 16:09:47
S.D.J.M., Kendrapara to record the further statement of the minor
victim under Section 183 of the BNSS.
I. F ACTUAL M ATRIX OF THE C ASE :
2. The brief facts of the case are as follows:
th

(i) On 18 August, 2025, the present Petitioner lodged a written
complaint before the IIC, Marine Jamboo Police Station, inter
alia , stating therein that the FIR-named accused persons had
forcibly kidnapped his minor daughter for the purpose of
contracting marriage. Based on such information, P.S. Case No.
173 dated 18.08.2025 was registered for offences punishable
under Section 137(2) read with Section 3(5) of the BNS against
the five named accused persons.

(ii) Upon recovery of the victim girl, her statement was recorded
before the learned S.D.J.M., Kendrapara under Section 183 of the
BNSS. The victim could not disclose the truth, as she, being a
rustic and bashful minor girl, was in the custody of the police
and in the presence/influence of the accused persons from the
time of her rescue till the recording of her statement.

(iii) The minor victim was not allowed to meet her parents, which
would have instilled confidence in her to narrate the injustice
meted out to her. Considering the mounting pressure from
police personnel and the accused persons and the intimidating
environment in which she was placed, the statement recorded
earlier does not depict the true sequence of events that unfolded
on the unfortunate day of the incident.
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Signed by: BHABAGRAHI JHANKAR
Reason: Authentication
Location: ORISSA HIGH COURT, CUTTACK
Date: 26-May-2026 16:09:47

(iv) The petitioner moved an application before the learned S.D.J.M.,
Kendrapara seeking re-recording/further recording of the
victim’s statement under Section 183 of the BNSS, 2023.
(v) The learned Magistrate, disregarding a long line of judicial
decisions and relevant statutory provisions, rejected the
application filed by the petitioner vide order dated 08.01.2026,
which is impugned herein. Moreover, no reasons have been
assigned by the learned Magistrate for rejecting the said
application, despite the same being necessary in the interest of
justice.
II. S UBMISSIONS O N B EHALF O F T HE P ETITIONER :

3. Learned counsel for the Petitioner earnestly made the following
submissions in support of his contentions:

(i) The present case concerns the kidnapping of a teenage girl, who
was left in the care of her grandparents by the petitioner to
pursue her education at a village school.

(ii) The petitioner resides in Bangalore with his wife to earn a
livelihood and provide a better life for his children and elderly
parents in the village. Taking advantage of his absence, the FIR-
named accused not only enticed the victim away from lawful
custody but also subjected her to sexual harassment.
(iii) Pursuant to the written report lodged by the petitioner (Jamboo
Marine P.S. Case No. 173 of 2025), the victim was rescued from
the accused’s residence. Despite being taken to the Community
Health Centre, Mahakalpara, the child was not medically
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Signed by: BHABAGRAHI JHANKAR
Reason: Authentication
Location: ORISSA HIGH COURT, CUTTACK
Date: 26-May-2026 16:09:47
examined by the Investigating Officer. Repeated requests by the
petitioner were disregarded, violating the statutory mandate
regarding medical examination of sexual offence victims.
(iv) Sections 2(d) and 27 of the POCSO Act, 2012, read with Section
164A of the CrPC, mandate that a child must be medically
examined upon rescue, irrespective of whether an FIR under the
Act has been registered. The state’s contention that FIR
registration is a precondition for medical examination is
therefore misplaced.
(v) Section 24 of the Act requires that a child’s statement be
recorded at her residence, usual place of stay, or place of her
choice, by a woman police officer not below the rank of Sub-
Inspector. Section 26 mandates that such statements be recorded
in the presence of the child’s parents or any person in whom the
child has trust or confidence.
(vi) In this case, the child was taken to the police station, which
lacked a woman Sub-Inspector and her statement was recorded
in the absence of her parents or nearest relatives. Similarly, the
learned S.D.J.M. recorded the child’s statement without
ensuring her parents’ presence, contrary to the child-friendly
procedures envisaged under the Act.
(vii) Alarmingly, the FIR-named accused accompanied the victim
from the place of recovery to the Sakhi Centre at Kendrapara on
22.08.2025 and were subsequently seen loitering near the Court
of the learned S.D.J.M., even offering a marriage proposal to the
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Signed by: BHABAGRAHI JHANKAR
Reason: Authentication
Location: ORISSA HIGH COURT, CUTTACK
Date: 26-May-2026 16:09:47
child. The victim later informed her parents that she had been
coached by police officials regarding her place of rescue and the
role of the accused persons.
1
(viii) In Bhima Mallik v. State of Orissa , a similar issue arose before
this Court regarding whether a Magistrate can record a
statement under Section 164 of the Code of Criminal Procedure,
1973 at the instance of the informant. The Court answered this
question in the affirmative and quashed the erroneous order of
the learned Magistrate.
(ix) The Court clarified that a statement under Section 164 Cr.P.C. is
not restricted to being recorded only at the instance of the
police. It may also be recorded at the request of the accused, the
aggrieved person, or even the witness himself, thereby affirming
the broader scope and purpose of the provision.
(x) The question whether statement of a witness under Section 164
Cr.P.C. can be recorded more than once, has been dealt with by
the High Court of Jammu and Kashmir in the case of Showkat
2
Ali v. State and Ors. , wherein it has been held as follows:
“ The Code does not contemplate any bar against
recording statement of a witness under Section 161 of the
Code and correspondingly under Section 164-A more
than once, Such a bar as a matter of fact cannot be
imposed because cases may not be rare where necessity of
recording such statement more than once arises and even
contradictory statements are made. However, if statement

1
1994 SCC OnLine Ori 184
2
(561-A No.259/2014 decided on 04.09.2014)
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Reason: Authentication
Location: ORISSA HIGH COURT, CUTTACK
Date: 26-May-2026 16:09:47
is recorded more than once, the I.O. will have to arrive at
a conclusion having regard to other evidence and material
collected by him ."
(xi) A similar view has been taken by the High Court of Jammu and
3
Kashmir in the case of Archana v. UT of J & K and Anr . ,
wherein it has been held as follows:
“ 5 . From the afore-quoted enunciation of law on the
subject, it is clear that there is no bar to recording
statement of a witness under Section 164 Cr. P, C more
than once .”
(xii) It is no longer res integra that further investigation can be
permitted even after filing of chargesheet of closer report as the
case may be. That the general rule of criminal justice is that "a
crime never dies". The principle is reflected in the well-known
maxim nullum tempus aut locus occurrit regi i.e. lapse of time is no
bar to crown in proceeding against offenders.
(xiii) Considering the procedural illegalities highlighted above,
learned counsel prays to allow the CRLMC with a direction to
the learned S.D.J.M, Kendrapara to record further statement of
the child-victim, keeping in view the in light of the settled legal
position.
III. S UBMISSIONS O N B EHALF O F T HE O PPOSITE P ARTIES :
4. The Learned Counsel for the Opposite Party earnestly made the
following submissions in support of his contentions:

3
Decided in CRM(M) No.206/2025 dated 17.03.2025
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Location: ORISSA HIGH COURT, CUTTACK
Date: 26-May-2026 16:09:47

(i) Due to the odd hour on 22.08.2025, the victim was kept at the
shelter home (One Stop Centre Sakhi, Icchapur) and produced
before the Court on 23.08.2025.
(ii) Therefore, there was no possibility of the victim being
influenced or surrounded by the accused.

(iii) As per the POCSO Act, the parents of the victim were not
allowed to remain present during recording of her statement.

(iv) However, the case was registered under Section 137(2)/3(5) of
BNS, and during investigation, based on the victim’s statement,
it was not converted into a POCSO case.

(v) The victim’s statement was recorded on 23.08.2025, and on the
same day, she was handed over to her father.

(vi) After a gap of around three months, the father filed the present
petition for recording her statement again.
(vii) Due to this long delay, the possibility of tutoring the victim
cannot be ruled out.
IV. C OURT S R EASONING AND A NALYSIS :
’

5. Heard learned Counsel for the parties and perused the documents
placed on record. Upon examining the records and circumstances, the
learned trial Court held that there is a significant delay in filing the
petition and the possibility of tutoring cannot be excluded.
Accordingly, the learned trial Court rejected the petition filed by the
Petitioner for further recording the statement of the victim under
Section 183 of the BNSS.
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Signed by: BHABAGRAHI JHANKAR
Reason: Authentication
Location: ORISSA HIGH COURT, CUTTACK
Date: 26-May-2026 16:09:47

6. The power to record a statement under Section 183 of the BNSS
(corresponding to Section 164 Cr.P.C.) is not a ritualistic exercise
confined within rigid procedural boundaries, but a judicial
mechanism intended to preserve the voluntariness, authenticity and
reliability of a witness’s version during investigation. The object of
such provision is not merely evidentiary preservation, but to ensure
that the statement reflects the free and uninfluenced account of the
maker. Consequently, where circumstances are brought to the notice
of the Court indicating that the earlier statement may not have been
made in a congenial, voluntary or confidence-inspiring atmosphere,
the Court cannot mechanically reject a prayer for further recording
solely on the ground that one statement has already been recorded.

7. It is true that there exists no statutory embargo against recording a
statement under Section 183 of the BNSS more than once. The judicial
pronouncements relied upon by the Petitioner, including Bhima
4
Mallik v. State of Orissa , Showkat Ali v. State(supra) and Archana
,(supra) correctly recognize that the provision does not
v. UT of J&K
prohibit subsequent recording of statements where circumstances so
demand. Criminal procedure is ultimately a handmaid of justice, and
not its mistress. Therefore, if the facts disclose a genuine apprehension
that the earlier statement was not made in an atmosphere conducive
to voluntariness, the Court possesses sufficient jurisdiction to direct

4
1994(II)OLR110

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Signed by: BHABAGRAHI JHANKAR
Reason: Authentication
Location: ORISSA HIGH COURT, CUTTACK
Date: 26-May-2026 16:09:47
further recording of the statement in the interest of a fair
investigation.
8. However, the existence of jurisdiction is one thing, and the
justification for exercise of such jurisdiction is another. A second or
subsequent statement under Section 183 of the BNSS cannot be
permitted as a matter of course merely because one party expresses
dissatisfaction with the earlier version. If such unrestricted liberty is
conceded, the sanctity attached to judicially recorded statements
would stand seriously diluted, and the process itself may become
susceptible to manipulation, tutoring or repeated attempts to secure a
favourable version. The Court is therefore required to strike a delicate
balance between two competing concerns — the need to secure a
truthful and voluntary account from the victim, and the equally
important necessity of preserving the integrity and finality attached to
statements recorded before a Magistrate.
9. In the present case, the principal ground urged by the Petitioner is
that the victim, being a minor rustic girl, was under fear, pressure and
influence when her earlier statement was recorded. Allegations have
also been made regarding non-compliance with certain child-friendly
procedures contemplated under the POCSO Act. At the same time, the
records reveal that the victim was produced before the learned
Magistrate on 23.08.2025 after being kept at the One Stop Centre
(Sakhi Centre) and was thereafter handed over to her father on the
very same day. The application seeking further recording of statement
came to be filed after a considerable lapse of time. The delay assumes
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Reason: Authentication
Location: ORISSA HIGH COURT, CUTTACK
Date: 26-May-2026 16:09:47
significance because with the passage of time, the possibility of
external influence, embellishment or tutoring equally becomes a
relevant consideration which the Court cannot ignore while exercising
inherent jurisdiction.
10.
The contention of the Petitioner that procedural safeguards under the
POCSO Act were not fully adhered to may at best constitute a
circumstance requiring cautious appreciation of the earlier statement
during trial, but such alleged irregularities, by themselves, do not
automatically render the statement non est or mandate a direction for
re-recording. A statement under Section 183 of the BNSS is not
substantive evidence in itself; its evidentiary value is ultimately tested
during trial through examination and cross-examination before the
competent Court. Therefore, even assuming that certain procedural
lapses occurred during investigation, the same would not necessarily
justify reopening the process of judicial recording unless compelling
circumstances are demonstrated showing that denial of such prayer

would occasion failure of justice.

11. The learned trial Court, while rejecting the application, took into
account the delay in approaching the Court and the attendant
possibility of tutoring. These considerations cannot be said to be
wholly irrelevant or extraneous. In exercise of jurisdiction under
Section 482 Cr.P.C./Section 528 BNSS, this Court does not sit as a
Court of appeal over every discretionary order passed by the
Magistrate. Interference is warranted only where the impugned order
suffers from patent perversity, manifest illegality or results in
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Reason: Authentication
Location: ORISSA HIGH COURT, CUTTACK
Date: 26-May-2026 16:09:47
miscarriage of justice. Merely because another view is possible would
not justify invocation of inherent powers.
12. At the same time, this Court cannot remain oblivious to the
overarching principle that the criminal justice system, particularly in
matters involving minor victims, must remain sensitive to the
possibility that fear, social pressure, intimidation or psychological
vulnerability may inhibit free disclosure at the initial stage. The
ultimate duty of the Court is to ensure discovery of truth while
maintaining procedural fairness. Therefore, although this Court is not
inclined to mechanically direct re-recording of the victim’s statement
at this belated stage, it is clarified that the victim shall remain free to
disclose the true facts during investigation, if legally permissible, or
during trial before the competent Court, and the trial Court shall
assess her testimony independently on its own merits without being
influenced solely by the earlier statement recorded under Section 183
of the BNSS .
V. C ONCLUSION :

13. In view of the foregoing analysis, this Court finds no patent illegality,
perversity or jurisdictional error in the impugned order dated
08.01.2026 passed by the learned S.D.J.M., Kendrapara warranting
interference in exercise of inherent jurisdiction under Section 482
Cr.P.C./Section 528 BNSS.
14. dismissed
Accordingly, the CRLMC stands . However, the
observations made herein shall not prejudice the rights of the victim
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Reason: Authentication
Location: ORISSA HIGH COURT, CUTTACK
Date: 26-May-2026 16:09:47
during trial, nor preclude the competent Court from appreciating her
evidence independently in accordance with law.




(Dr. Sanjeeb K Panigrahi)
Judge
Orissa High Court, Cuttack,
th
Dated 15 May, 2026

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