New guide­lines laid down for record­ing vic­tims’ state­ments

The New Indian Express - - CHENNAI - SIVA SEKARAN

THE Madras High Court has held that the state­ment of a wit­ness/vic­tim can be recorded un­der Sec­tion 164 CrPC only at the in­stance of the In­ves­ti­gat­ing Of­fi­cer (IO) of the case and it is not nec­es­sary for him to ap­proach the CMM/CJM with an ap­pli­ca­tion for nom­i­nat­ing a mag­is­trate for do­ing it.

A spe­cially con­sti­tuted bench of Chief Jus­tice Indira Ban­er­jee and Jus­tice P N Prakash gave the di­rec­tives, when a batch of pe­ti­tions rais­ing the is­sues were placed be­fore it, on Fri­day.

The bench said that a mag­is­trate, whether he has got ju­ris­dic­tion or not to in­quire into or try the case, can record the state­ment of a wit­ness/vic­tim un­der this sec­tion on the re­quest of the IO of the case.

The pre­sid­ing of­fi­cer of a Spe­cial Court, which has been em­pow­ered to take cog­ni­sance of an of­fence with­out there be­ing a need for com­mit­tal, may also record such state­ments on the re­quest of the IO. Af­ter record­ing the state­ments, the judge/mag­is­trate shall take two pho­to­copies of them, un­der his/her di­rect su­per­vi­sion and cer­tify them as true copies. He/she should fur­nish one copy to the IO free of cost with a spe­cific di­rec­tion to use it only for pur­pose of in­ves­ti­ga­tion and not to make its con­tents pub­lic, un­til the in­ves­ti­ga­tion is over and the fi­nal re­port filed. The other copy shall be kept in a sealed cover in the safe cus­tody of the judge/mag­is­trate. If the mag­is­trate who had recorded the 164 CrPC state­ment is not the ju­ris­dic­tional mag­is­trate, he shall send the orig­i­nal state­ment to the ju­ris­dic­tional court, ei­ther through a spe­cial mes­sen­ger or by regis­tered post with ac­knowl­edg­ment due. If he him­self is the ju­ris­dic­tional mag­is­trate, he shall keep the orig­i­nal of the state­ment in the case records.

The is­sues raised be­fore the bench are whether the po­lice are en­ti­tled to be fur­nished with copies of the state­ments of the wit­nesses and con­fes­sion of the ac­cused recorded un­der Sec­tion 164 CrPC, the dy­ing dec­la­ra­tion and the test iden­ti­fi­ca­tion pa­rade re­port of the mag­is­trate.

As re­gards con­fes­sion state­ment of the ac­cused, the bench said the IO should make an ap­pli­ca­tion be­fore the CMM/CJM for nom­i­nat­ing a mag­is­trate, other than the ju­ris­dic­tional mag­is­trate. Af­ter record­ing the state­ment, the mag­is­trate shall ob­serve the same for­mal­i­ties as men­tioned above.

Af­ter record­ing the dy­ing dec­la­ra­tion, the bench said the mag­is­trate shall fol­low the same for­mal­i­ties. For test iden­ti­fi­ca­tion pa­rade re­port, the bench said an ap­pli­ca­tion for the same shall be made un­der Sec­tion 54-A of the Code by the IO, to the court hav­ing ju­ris­dic­tion. On such ap­pli­ca­tion, the court may di­rect the per­son so ar­rested to sub­ject him­self to iden­ti­fi­ca­tion. The court shall make a re­quest to the CMM/CJM of the dis­trict to nom­i­nate a mag­is­trate, other than the ju­ris­dic­tional mag­is­trate, to con­duct the pa­rade. Upon re­ceipt of such re­quest, the CMM/CJM shall im­me­di­ately pass or­ders nom­i­nat­ing a mag­is­trate. The mag­is­trate so nom­i­nated shall con­duct the pa­rade and af­ter pre­par­ing the re­port, he shall adopt the same for­mal­i­ties, the bench added,

The bench also di­rected the State gov­ern­ment to con­struct spe­cial rooms for con­duct­ing the iden­ti­fi­ca­tion pa­rades in all prisons in the State within six months. Such rooms should have one side view glass par­ti­tion sep­a­rat­ing those lined up for the pa­rade on the one hand and the wit­ness and mag­is­trate on the other. The wit­ness and the mag­is­trate should not be vis­i­ble to those who are lined up, but, the sus­pect and the dum­mies should be vis­i­ble clearly to the wit­ness and the mag­is­trate. The en­clo­sure in which the sus­pect and the dum­mies are lined up shall be well il­lu­mined and should also have an ante room for them to change their at­tire.

The bench di­rected the Regis­trarGen­eral to cir­cu­late a copy of this or­der to all ju­di­cial of­fi­cers in the State.

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