REPORTABLE
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICITON
SPECIAL LEAVE PETITION (CRL.) NO. 5073/2011
State of Karnataka V Shivanna @ Tarkari Shivanna
Dated: April 25, 2014
1. Vide order dated 30.08.2013, we had proposed to consider this
matter on merit after service of notice to the accused-respondent as we
felt acutely concerned as to why the Union of India should not take
initiative and steps to evolve a procedure for fast track justice to be
adopted by the Investigating Agencies and the Fast Tract Courts by
proposing amendments into the Cr.P.C. for speedy justice to the victim.
2. We had noted that the Fast Tract Courts no doubt are being
constituted for expeditious disposal of cases involving the charge of
rape at the trial stage, but we are perturbed and anguished to notice
that although there are Fast Tract Courts for disposal of such cases, we
do not yet have a fast track procedure for dealing with cases of rape and
gang rape lodged under Section 376 IPC with the result that such heinous
offences are repeated incessantly.
3. We had further observed that there is a pressing need to
introduce drastic amendments into the Cr.P.C. in the nature of fast tract
procedure for Fast Track Courts when we considered just and appropriate to
issue notice and called upon the Union of India to file its response as to
why it should not take initiative and sincere steps for introducing
necessary amendment into the Cr.P.C., 1973 involving trial for the
charge of ‘Rape’ by directing that all the witnesses who are examined
in relation to the offence and incident of rape cases should be
straightway produced preferably before the Lady Judicial Magistrate for
recording their statement to be kept in sealed cover and thereafter the
same be treated as evidence at the stage of trial by producing the same in
record in accordance with law which may be put to test by subjecting it to
cross-examination. We were and are further of the view that the statement
of victim should as far as possible be recorded preferably before the Lady
Judicial Magistrate under Section 164 Cr.P.C. skipping over the recording
of statement by the Police under Section 161 Cr.P.C. to be kept in sealed
cover and thereafter the same be treated as evidence at the stage of trial
which may be put to test by subjecting it to cross-examination. We are
further of the view that the statement of victim should as far as possible
be recorded preferably before the Lady Judicial Magistrate under Section
164 Cr.P.C. skipping over the recording of statement by the police
under Section 161 Cr.P.C. which is any case is inadmissible except for
contradiction so that the statement of the accused thereafter be
recorded under Section 313 Cr.P.C. The accused then can be committed to
the appropriate Court for trial whereby the trial court can straightway
allow cross examination of the witnesses whose evidence were recorded
earlier before the Judicial Magistrate.
4. What we wished to emphasize is that the recording of evidence
of the victim and other witnesses multiple times ought to be put to an end
which is the primary reason for delay of the trial. We are of the view
that if the evidence is recorded for the first time itself before the
Judicial Magistrate under Section 164 Cr. P.C. and the same be kept in
sealed cover to be produced and treated as deposition of the witnesses and
hence admissible at the stage of trial with liberty to the defence to cross-
examine them with further liberty to the accused to lead his defence
witness and other evidence with a right to cross-examination by the
prosecution, it can surely cut short and curtail the protracted trial if it
is introduced at least for trial of rape cases which is bound to reduce the
duration of trail and thus offer a speedy remedy by way of a fast track
procedure to the Fast Track Court to resort to.
5. Considering the consistent recurrence of the heinous crime of
rape and gang rape all over the country including the metropolitan cities,
we are of the view that it is high time such measures of reform in the Cr.
P.C. be introduced after deliberation and debate by the legal fraternity as
also all concerned.
6. We had therefore issued notice to the Union of India as also
the Law Commission of India and all the State Law Commissions and the Law
Secretaries of the States for eliciting their views on the subject. The
Law Commission of India filed its response to the same, and although in
principle agree that the proposed changes in the Cr.P.C. are justified,
it is of the opinion that the same might prejudice the investigation of
the case by the police. Thereafter, we thought appropriate to invite the
views of the legal fraternity and hence a general notice was issued to
the Members of the Bar to assist the Court considering the importance of
the issue raised.
7. We, thereafter appointed the learned senior counsel Mr. Shekhar
Naphade and Mr. U.U. Lalit, who appeared and addressed this Court.
Learned senior advocate Mr. Shekhar Naphade agreed with the suggestions
given by this Court that the statement of the victim of rape and gang rape
may be and should be recorded under Section 164 of the Cr.P.C. which should
be placed on record treated as evidence of the victim and may later be
relied upon as evidence and then the accused may be given a chance to
cross-examine the prosecution version and the evidence recorded at the
instance of the victim.
8. Learned senior counsel Mr. Shekhar Naphade was good enough to
give us a brief note in this regard. The learned Addl. Solicitor General
Mr. Siddharth Luthra also ably assisted us and drew the attention of
this Court regarding the implications on the trial in case the statement of
victim is recorded under Section 164 Cr.P.C. and is made admissible for the
purpose of trial.
9. 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 station in
charge in the entire country to follow the direction of this Court which
are as follows:
(i) 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 Section 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 Cr.P.C.
should not be disclosed to any person till charge
sheet/report under Section 173 Cr.P.C. is filed.
(ii) The Investigating Officer shall as far as possible take
the victim to the nearest Lady Metropolitan/preferably
Lady Judicial Magistrate.
(iii) 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
Metropolitan/preferably Lady Judicial Magistrate as
aforesaid.
(iv) 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.
(v) Medical Examination of the victim: Section 164 A Cr.P.C.
inserted by Act 25 of 2005 in Cr.P.C. imposes an
obligation on the part of Investigating Officer to get
the victim of the rape immediately medically examined.
A copy of the report of such medical examination
should be immediately handed over to the Magistrate
who records the statement of the victim under Section
164 Cr.P.C.
10. A copy of this order thus be circulated to all the Director
Generals of Police of all the States/Commissioner of Police in Metropolitan
cities / Commissioner of Police of Union Territories who are then
directed to send a copy of this order to all the police stations in
charge in their States/Union Territories for its compliance in cases
which are registered on or after the receipt of a copy of these
directions. Necessary instructions by the DGPs/ Commissioners of Police
be also issued to all the police station incharge by the DGPs/Commissioner
of Police incorporating the directions issued by us and recorded
hereinbefore.
11. The matter be posted again after four weeks to ensure
compliance of this order by the DGS & Commissioners of Police in the
country before the appropriate Bench and also for such other further order
or orders which may be considered necessary.
…………………………….J.
(Gyan Sudha Misra)
…………………………….J.
(V. Gopala Gowda)
New Delhi,
April 25, 2014
-----------------------
8
No comments:
Post a Comment