The Allahabad High Court has said that “in majority of cases”, provisions of CrPC Section 161(3), which make it mandatory for police to have rape or molestation victims’ statements recorded by a woman officer and through audio-video recording, are not being followed.
The court issued directions to the state’s director general of police and principal secretary (Home) to issue guidelines to all SSPs on compliance with statutory provisions provided in first and second provisos to CrPC Section 161(3) within two months. The two provisions under the said CrPC section say that a statement may also be recorded by audio-video electronic means and that in cases of rape and molestation, it should be recorded by a woman police officer.
The observation by a bench of Justice Sanjay Kumar Singh came on August 11 during the hearing on a bail application of a person accused of rape in Prayagraj district. The counsel for the applicant submitted in court that in the statement of the (rape) victim recorded on December 4, 2020 under Section 164 of CrPC, she had alleged that the applicant and a co-accused raped her.
The lawyer further said that after the first statement, the investigation officer recorded another statement of victim three days later in which she “assigned the role of committing rape only against the applicant and so far as the co-accused Badal is concerned, she has stated that she earlier had made the allegation of rape against co-accused Badal on the advice of her counsel”. The lawyer told the court that the co-accused has been charge-sheeted only under IPC Section 366 (kidnapping, abducting or inducing a woman to compel her marriage).
The lawyer said that the IO “has not conducted a fair investigation and he in collusion with the co-accused” and to “minimise the gravity of offence against him, recorded the second statement of the victim”.
The court had on July 30 directed the IO to appear in person and submit an affidavit, explaining why the second statement was not recorded by audio-video electronic means.
Additional Advocate General (AAG) MC Chaturvedi, appearing on behalf of the state, submitted that the “second statement under Section 161 (1), CrPC was recorded by IO “in good faith in discharge of his duty as provided in paragraph no. 107 of the Police Regulations”.
The AAG said that the second statement was not recorded by any woman police officer, but by the IO. He also said that it was not recorded “by any audio-video electronic means”.
“…Investigating Officer realizing his mistake tendered his unconditional written apology and he will be careful in future,” he submitted.
The court took note of the fact that the IO, in his affidavit, did not give an explanation for not following the provisions. The court observed that “in a criminal offence one of the established canons of just, fair and transparent investigation is the right of accused as well as victim, therefore high responsibility lies upon the Investigating Officer not to conduct an investigation in tainted and unfair manner, which may legitimately lead to a grievance of accused that unfair investigation was carried out with an ulterior motive”.
“…this Court has been noticing that in majority of cases, the said provisions are not being followed by the Investigating Officers in true sense and practice of recording second statement under Section 161 Cr.PC of the victim/prosecutrix after recording her statement under Section 164 CrPC. is on higher side and in some cases, conclusions are drawn by the Investigating Officer on the basis of second statement under section 161 CrPC, ignoring the statements under Section under Section 164 Cr.PC,” said the court.
The court also ordered that a copy of its order be sent to the Prayagraj Senior Superintendent of Police “for examining the conduct of the Investigating Officer of this case and taking appropriate action in the matter”.
The court also said that the order passed by the Prayagraj SSP and directions/guidelines issued by UP Director General of Police shall be communicated to this Court within eleven weeks.