Magistrate Recording Section 164 Statement Need Not Be Summoned Unless Witness Denies or Disowns the Statement

The petitioner (de facto complainant) filed a complaint in 2014 alleging the sexual assault of his six-year-old daughter at school, leading to a charge sheet under Section 376 of the IPC and Sections 4, 6, and 21 of the POCSO Act.

During the trial (Spl.C. 157/2014), which has remained pending for over a decade, the petitioner moved an application to summon the recording Magistrate to testify regarding a statement recorded under Section 164 of the Cr.P.C.

The petitioner alleged the statement lacked the signatures of both the victim and the Magistrate, necessitating the Magistrate’s presence to prove the statement’s veracity and ensure the case did not collapse.

The Special Court for POCSO cases rejected this request on 20.02.2024, prompting this Writ Petition.

The court primarily applied Section 164 of the Cr.P.C. regarding the procedure for recording statements and confessions.

Sections 24, 25, and 26 of the POCSO Act, which constitute a self-contained code for recording a child's statement "as spoken," noting the Act does not mandate a child's signature.

Relied on Murugasamy v. State [p. 14] and R. Murugesan v. State [p. 26], which established that a Section 164 statement is a "public document" under Section 74 of the Evidence Act and carry a presumption of genuineness under Section 80.

Section 35 of the POCSO Act and Section 309 of the Cr.P.C. (now Section 346 BNSS), which mandate day-to-day trials and completion within one year.

The right to a speedy trial under Article 21 of the Constitution as interpreted in Alakh Alok Srivastava v. Union of India and CBI v. Mir Usman Ali.

The court reasoned that the POCSO Act is a protective statute designed to shield child victims from trauma; therefore, the absence of a child’s signature on a Section 164 statement is a conscious legislative omission to account for age and vulnerability.

Applying Murugesan, the court held that a Magistrate should only be summoned if a witness denies or disowns the statement during trial; a Magistrate cannot be summoned for mere procedural irregularities or "speculative anxiety" regarding authenticity.

The court noted that the stage for evaluating the statement's evidentiary value had not yet arrived, as the victim had not yet resiled from it in court.

Addressing the 12-year pendency, the court observed that the "culture of adjournments" had defeated the legislative intent of Section 35(2) of the POCSO Act, which requires trial completion within one year.

The court found that such a delay violated the victim's fundamental right to a speedy trial under Article 21.

The court held that a Magistrate is not a routine witness for proving Section 164 statements unless the maker disputes the document.

The court issued a mandatory directive to the Special Court to conclude the trial within 8 weeks of receiving the order.

The court further directed both parties to refrain from dilatory tactics and instructed the Trial Court to decline unwarranted adjournments to fulfill the statutory command of the POCSO Act.