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Police Can’t Question Prosecutrix/Victim Regarding Variations In Statements Given U/S 161 & 164 Of CrPC: Allahabad High Court

Putting questions to the prosecutrix/victim with regards to the change in version by her in the statements under Section 161 of the CrPC and in the statement under Section 164 of the CrPC, clearly shows disrespect to the courts who have recorded the statements under Section 164 of the Code as held by the Hon’ble High Court of Allahabad through a learned bench of Justice Samit Gopal in Dharmendra Vs State of U.P [CRIMINAL MISC. BAIL APPLICATION No. – 31695 Of 2021] with CRIMINAL MISC. BAIL APPLICATION No. – 20006 Of 2021 and CRIMINAL MISC. BAIL APPLICATION No. – 30288 Of 2021.

The brief facts of the case are that the Court was hearing three bail applications, argued on a particular issue common in all of them, however, the Court did not go into the merits of the cases, and rather dealt with a specific question, which is as follows: “Whether the Investigating Officer of a case, can, after recording the statement of a prosecutrix/victim once under Section 161 of CrPC who has supported the prosecution case and then in her statement recorded under Section 164 of the Code recorded before a Magistrate has given a different version and more particularly does not state about any wrongful act being committed on her as has been recorded in her statement under Section 161 of the Code earlier, can again interrogate the prosecutrix/victim under Section 161 of the Code and put specific questions to her pertaining to the two different versions given by her in the said two statements and then record the statements and proceed with the Investigation further?”

Essentially, the Court was concerned with the question as to whether a police officer can question/interrogate a rape victim again, who first supported the case of prosecution alleging rape in her statement recorded under 161 CrPC, but later on, gives a different version and more particularly does not state about any wrongful act being committed in her statement recorded under Section 164 of the Code before the Magistrate.

In conclusion, while observing that under Section 164 of CrPC, the statement of a victim is recorded by Judicial Magistrates in the discharge of their judicial functions and therefore, the act of the Investigating Officer putting a question to the victim as to why she gave out a different version before the magistrate (in comparison to her statement under 161) is not appreciable. The court stated that “By putting questions to the prosecutrix/victim in her second statement under Section 161 of the Code after recording of the statement under Section 164 of the Code relating to the different versions in the said two statements, the Investigating Officer cannot frustrate the same and also make an attempt to make the purpose of the said exercise look a farce…The act of putting specific questions pertaining to the variations in the said two statements by the Investigating Officer is viewed with an impression of clearly challenging the authority of a judicial act. The Investigating Officers have clearly exceeded their jurisdiction by proceedings to investigate in such a manner. The same appears to be with a sole purpose to frustrate the statements recorded by a Magistrate.”

Lastly, the Court directed the DGP to issue necessary guidelines within a period of one month and also asked the state counsels and registry to submit a compliance report within one week thereafter.

Click here to read the Judgment

Judgment Reviewed by – Aryan Bajaj

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