MISS ‘A versus STATE OF UTTAR PRADESH AND ANR. on 8 October 2020

1. Leave granted.

2. This appeal arises out of order dated 07.11.2019 passed by theHigh Court[1] in Criminal Miscellaneous Application No.39538 of 2019.

3. On 25.08.2019, the father of the Appellant lodged a Complaintwith Police Station Kotwali, District Shahjahanpur that he had seen avideo of the Appellant on her Facebook account alleging that RespondentNo.2 and some others had sexually exploited the Appellant and manyother girls; that the Appellant was not contactable; that he wasapprehending danger to the Appellant; and that prompt action be taken G

in the matter.

1 High Court of Judicature at Allahabad

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A4. Thereafter, pursuant to a complaint filed by one Mr. Om Singh,Advocate, to the effect that he looked after the legal work of the Ashramrun by Respondent No.2; and that an unknown person had threatenedthat unless Rupees Five Crores were paid, the reputation of RespondentNo.2 in the society would be harmed. Said Complaint was immediatelyregistered as FIR No. 442 of 2019.B

5. The Complaint filed by the father of the Appellant was registeredtwo days later as FIR No.445 of 2019 in respect of offences of abductionand sexual harassment under Sections 506 and 364 of Indian Penal Code(for short, ‘IPC’).

C6. The Facebook video of the Appellant having gone viral, letterswere written to this Court by some advocates whereafter Suo MotuWrit Petition (Crl.) No. 2 of 2019 was registered in this Court. On30.08.2019 it was reported to this Court that the Appellant was found inDistrict Dausa of State of Rajasthan. On 30.08.2019, this Court recordedthe statement of the Appellant that she did not intend to go back to UttarDPradesh but would meet her parents in Delhi. Certain directions weretherefore passed.

7. In its Order dated 02.09.2019, this Court observed:- “We are not expressing any opinion regarding the grievancesEexpressed by the girl Miss “A” and apprehensions of her parents.All that we wish to point out is that the correctness of thegrievances/apprehension has to be addressed as per the procedureestablished in law.

In view of above, we direct the Chief Secretary, State of UttarFPradesh, to constitute a Special Team headed by a police officerin the rank of the Inspector General of Police to be assisted bythe Superintendent of Police and a team of police officers to enquireinto the grievances expressed by Miss “A” and insofar as theapprehension expressed by the parents of Miss “A”.

At this stage, Mr. Vikramjit Banerjee, learned Additional SolicitorGGeneral, representing the State of Uttar Pradesh along with Ms.Aishwarya Bhati, learned Additional Advocate General, hassubmitted that an FIR No.0445 dated 27.08.2019, against themanagement of the Institution has been registered under Section364 and 506 IPC., based on the complaint lodged by theHcomplainant-father of the girl Miss “A”. Mr. Vikramjit Banerjee has also submitted that a cross FIR No. 0442 dated 25.08.2019has been registered.

The investigation team to be constituted shall take note of boththe FIRs and proceed with the investigation in accordance withlaw in both the investigations and file status report before theHigh Court.

Considering the facts and circumstances of the case, we requestthe Chief Justice of the High Court of Judicate at Allahabad toconstitute a Bench to monitor the investigations in this regard.

Insofar as the apprehension expressed by the father of the girlabout their safety, we direct the Chief Secretary, State of UttarPradesh, to direct the Superintendent of Police of the concerneddistrict, namely, Shahjahanpur, to afford protection to the parentsand family members of the girl on assessing the threat perception.We request the High Court to also review the protection accordedto the family members of Miss “A” and pass appropriate orders.”

8. Accordingly, Special Investigation Team (SIT) was set up andthe statement of the Appellant was recorded on 16.09.2019 by JudicialMagistrate under Section 164 of the Code of Criminal Procedure (forshort, ‘the Code’). On 17.09.2019, an application was filed by theAppellant that there were certain lapses while recording her statementunder Section 164 of the Code. On 17.09.2019 itself, an application wasmoved by Respondent No.2 seeking certified copy of the statement ofthe Appellant under Section 164 of the Code. The application was rejectedby the Additional District and Sessions Judge, Shahjahanpur, by orderdated 19.09.2019. Relying on the decision of this Court in State ofKarnataka by Nonavinakere Police vs. Shivanna alias TarkariShivanna[2], it was stated:- “… …If the copy of statement under section 164 is provided atthis preliminary stage of investigation then besides spilling all thebeans of investigation before the concerned person(s) who shallalso come to know names of all the key witness(es) involved inthis case, the health and safety of the victim(s) but also that of allthe key witnesses will be in peril. It is also very likely that of allaffected and concerned person(s) will leave no stone unturned ininfluencing the investigation itself and all key witnesses in their 2 (2014) 8 SCC 913

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Afavour much before any report is made under S.173 CrPC. Allthis is surely bound to ‘dent’ the prosecution case. However, oncethe investigation is over and a report is filed under section 173 ofCrPC at that stage the copy of the statement under Section 164CrPC along with other relevant documents can be asked by theconcerned person.BIn view of the above, application filed by the learned counsel ofthe applicant Swami Chinmyanand Saraswati to obtain copy ofthe statement under Section 164 of CrPC is rejected for all thereasons discussed above.”

C9. On 20.09.2019 Respondent No.2 was arrested and hisapplication for bail was rejected by the Chief Judicial Magistrate,Shahjahanpur on 23.09.2019. On 22.10.2019 Criminal MiscellaneousApplication No.39538 of 2019 was filed by Respondent No.2 in the HighCourt challenging the order dated 19.09.2019. On 05.11.2019 charge-sheets were filed by SIT in connection with FIR No. 442 of 2019 andDFIR No. 445 of 2019. The charge-sheet filed in Crime registered pursuantto FIR No. 445 of 2019 states that Respondent No.2 committed offencespunishable under Sections 376C, 354D, 342, 506 of IPC.

10. On 07.11.2019, Criminal Miscellaneous Application No. 39538of 2019 was allowed by the High Court. The following observationsEfrom the decision of the Division Bench of the High Court in Raju JankiYadav vs. State of U.P. and others[3 ]were relied upon :- “On these terms, we are of the view that any application, if made,by any concerned person to obtain a copy of the statement underSection 164 Cr.P.C., the same could never be denied to him if heFis ready to pay the costs admissible under Rules. …”The High Court also recorded the statement of the learnedAdvocate for the State as under:- “Learned A.G.A. had sought time to seek instructions for takingup the matter. Now he has received the instructions. He has statedGthat a copy of the statement of victim recorded under Section 164Cr.P.C. ought to have been given to accused-applicant. Impugnedorder has been erroneously passed by the trial court by which it 3 (2012) 6 All LJ 486 = Criminal Miscellaneous Writ Petition No.3567 of 2012 decidedHon 08.05.2012.

had refused to provide a copy of the statement of the victimrecorded under Section 164 Cr.P.C. to the accused-applicant.”

The High Court found that the decision of this Court in Shivanna[2]would not get attracted for the following reason:- “It was argued by the learned counsel for the applicant that thesaid directions were issued only for the police to be followed andnot to the Court. I agree with the said argument and I am of theopinion that correct law has been laid down by the Division Benchof this Court in the case of Raju (supra), in view of that it wasbounden duty of the trial court to provide a certified copy of thestatement of the victim recorded under Section 164 Cr.P.C. to theapplicant subject to payment of usual charges.

Accordingly, the impugned order is set aside and it is directed thattrial court shall provide a certified copy of the statement of victimrecorded under Section 164 Cr.P.C. to the applicant subject topayment of usual charges.”

11. Before the Appellant could challenge the decision of the HighCourt, by filing the instant Special Leave Petition on 13.11.2019, a copyof her statement recorded under Section 164 of the Code was madeover to Respondent No.2.

12. When this Appeal was taken up for hearing, the learnedAdvocate for the Appellant reported “no instructions” in the matterand prayed for withdrawal of appearance. Since the matter raisedquestions of law, we rejected the prayer and proceeded to hear thelearned counsel for the parties.

13. The directions issued by this Court in Shivanna[2 ]were in thefollowing backdrop:- “2. We had noted that the Fast Track Courts no doubt are beingconstituted for expeditious disposal of cases involving the chargeof rape at the trial stage, but we are perturbed and anguished tonotice that although there are Fast Track Courts for disposal ofsuch cases, we do not yet have a fast track procedure for dealingwith cases of rape and gang rape lodged under Section 376 IPCwith the result that such heinous offences are repeated incessantly.

3. We had further observed that there is a pressing need tointroduce drastic amendments into CrPC in the nature of fast A

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track procedure for Fast Track Courts when we considered justand appropriate to issue notice and called upon the Union of Indiato file its response as to why it should not take initiative and sinceresteps for introducing necessary amendment into the CriminalProcedure Code, 1973 involving trial for the charge of “rape” bydirecting that all the witnesses who are examined in relation tothe offence and incident of rape cases should be straightawayproduced preferably before the Lady Judicial Magistrate forrecording their statement to be kept in sealed cover and thereafterthe same be treated as evidence at the stage of trial by producingthe same in record in accordance with law which may be put totest by subjecting it to cross-examination. We were and are furtherof the view that the statement of victim should as far as possiblebe recorded preferably before the Lady Judicial Magistrate underSection 164 CrPC skipping over the recording of statement bythe police under Section 161 CrPC to be kept in sealed cover andthereafter the same be treated as evidence at the stage of trialwhich may be put to test by subjecting it to cross-examination.”

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The directions issued by this Court were to the following effect:-

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The directions issued by this Court were to the following effect:- “10.1. Upon receipt of information relating to the commission ofoffence of rape, the investigating officer shall make immediateEsteps to take the victim to any Metropolitan/preferably JudicialMagistrate for the purpose of recording her statement under Section164 CrPC. A copy of the statement under Section 164 CrPC shouldbe handed over to the investigating officer immediately with aspecific direction that the contents of such statement under Section164 CrPC should not be disclosed to any person till charge-sheet/Freport under Section 173 CrPC is filed.

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10.2. The investigating officer shall as far as possible take thevictim to the nearest Lady Metropolitan/preferably Lady JudicialMagistrate.

10.3. The investigating officer shall record specifically the dateand the time at which he learnt about the commission of theoffence of rape and the date and time at which he took the victimto the Metropolitan/preferably Lady Judicial Magistrate asaforesaid.

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10.4. If there is any delay exceeding 24 hours in taking the victimto the Magistrate, the investigating officer should record thereasons for the same in the case diary and hand over a copy ofthe same to the Magistrate.

10.5. Medical examination of the victim: Section 164-A CrPCinserted by Act 25 of 2005 in CrPC imposes an obligation on thepart of investigating officer to get the victim of the rapeimmediately medically examined. A copy of the report of suchmedical examination should be immediately handed over to theMagistrate who records the statement of the victim under Section164 CrPC.”

14. It was, thus, directed by this Court that a copy of the statementof the victim recorded under Section 164 of the Code be handed over bythe concerned Judicial Magistrate to the Investigating Officer with aspecific direction that the contents of such statement under Section 164of the Code should not be disclosed to any person till charge-sheet/report under Section 173 of the Code was filed.

15. The Scheme of the relevant provisions of the Code showsthat after the conclusion of the investigation, an appropriate report underSection 173 of the Code is to be filed by the police giving information asrequired by Section 173. In terms of Section 190 of the Code, theconcerned Magistrate may take cognizance of any offence inter aliaupon a police report. At the stage of exercise of power under Section190 of the Code, as laid down by this Court in number of decisions, thenotable being the decision in Bhagwant Singh vs. Commissioner ofPolice[4], the Magistrate may deem fit that the matter requires furtherinvestigation on certain aspects/issues and may pass appropriate direction.It is only after taking of the cognizance and issuance of process that theaccused is entitled, in terms of Sections 207 and 208 of the Code, tocopies of the documents referred to in said provisions.

The filing of the charge-sheet by itself, does not entitle an accusedto copies of any of the relevant documents including statement underSection 164 of the Code, unless the stages indicated above areundertaken.

16. Thus, merely because the charge-sheet was filed by the timethe High Court had passed the order in the present matter, did not entitle A

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ARespondent No.2 to a copy of the statement under Section 164 of theCode.

17. That apart, the reason that weighed with the High Court inplacing reliance on the decision of the Division Bench of the High Courtrendered in the year 2012 which was before the directions were passedBby this Court in Shivanna[2 ]was completely incorrect. As logical extensionof the directions passed by this Court, no person is entitled to a copy ofstatement recorded under Section 164 of the Code till the appropriateorders are passed by the court after the charge-sheet is filed.

The right to receive a copy of such statement will arise only afterCcognizance is taken and at the stage contemplated by Sections 207 and208 of the Code and not before. The application of Respondent No.2was, therefore, rightly rejected by the Additional Sessions Judge and theorder so passed did not call for any interference by the High Court.

18. In our view, the High Court completely erred in appreciatingDthe directions issued by this Court, especially in a matter where theoffences alleged against accused are of sexual exploitation. In suchmatters utmost confidentiality is required to be maintained. In our view,the High Court completely failed in that behalf.

19. Though, a copy of the statement recorded under Section 164Eof the Code was made over to the accused, we must set aside the orderpassed by the High Court and lay down that under no circumstancescopies of statements recorded under Section 164 of the Code can befurnished till appropriate orders are passed by the Court after takingcognizance in the matter.

20. We must also observe that the decision of the Division BenchFof the High Court on which reliance was placed in the present mattermust be held to be subject to the directions issued by this Court inShivanna[2], as explained hereinabove.

21. This appeal is, therefore, allowed.

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Divya Pandey

Appeal allowed.

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