Facts
A school Correspondent-cum-Secretary of a deaf and dumb school who also had hearing and speaking impairment himself sexually assaulted four students with hearing and speaking impairments, one of whom was also forced to undergo an abortion due to the assault. A bail application was filed before the court and the court requested a copy of the S 164 statement for bail application from the police. However, they were unable to submit the same as they didn’t have a copy of the 164 statement and submitted that the police would have to make a copy application for getting the same from the jurisdictional Magistrate and only then the same could be furnished to the court. The Additional Public Prosecutor submitted that it this was a common practice in the State of Tamil Nadu and was followed for all statements under Section 164. A special bench was formed to adjudicate on this issue for i) 164 statement of victim/witness and ii) 164 confession statement of the accused; iii) Dying declaration and d) Test Identification Parade reports.
Judgment
The court in this case analysed the procedure to record statements of victim/witness, inter alia, by the Magistrate. The court gave the following directions qua statements of victim/witness: (i) A statement of a victim under Section 164 CrPC can only be recorded at the instance of the Investigating Officer of the case and should be recorded within 24 hours (as directed by the Apex Court in Shivanna). (ii) It is not necessary for the Investigating Officer to approach the CMM/CJM with an application for nominating a Magistrate to record the statement of a witness/victim. (iii) A Magistrate, irrespective of whether he has got jurisdiction or not, to inquire into or try the case (iv) The Presiding Officer of a Special Court which has been empowered to take cognizance of an offence without there being a need for committal, may also record the statement of a witness/victim under Section 164 CrPC, on the request of the Investigating Officer. (v) The Magistrate shall arrange for two true certified copies of the statement and furnish one to the Investigation officer, immediately, free of cost and should keep the other in his custody, in a sealed cover. (vi) The accused is not entitled to such copy as they do not stand at the same footing as the Investigating Officer. (vii) The Magistrate must send the original statement to the jurisdictional Court. (viii) The contents of the statement shall not be made public until investigation is completed and a police report is filed. (ix) The Magistrate may seek the assistance of the police eliciting relevant facts from the victim/witness while recording their statement. The court also observed that (i) when a Magistrate records the statement of a witness, it has a higher sanctity than the one recorded by the police, (ii) The expression “Magistrate” under Section 25 of the POCSO Act should perforce include the Special Judge designated under Section 28 of the POCSO Act also and only then, these two sections can be harmoniously blended. The court also laid emphasis on Section 164 (5)(a) wherein if the maker of the statement is temporarily or permanently, mentally or physically disabled, the statement made by such a person shall be considered as substantive evidence by the Trial Court and the maker need not be examined-in-chief, but, can be subjected to cross-examination on the basis of the statement recorded under Section 164(5- A) Cr.P.C.