Recording Of Victim's Statement By Audio-Video Means, By Woman Officer: Allahabad HC Directs Compliance Of Provisos To S. 161 (3) CrPC

Therefore, the Bench of Justice Sanjay Kumar Singh directed the Director-General of Police, U.P., and the Principal Secretary, Home to issue necessary directions/guidelines to all the Senior Superintendent of Police regarding the compliance of these statutory provisions within two months.

The issue before the Court

The Court issued this direction after noting that in a matter before it, the statement of the rape victim/prosecutrix was not recorded by a woman police officer or woman officer [as required under proviso 2 to Section 161 (3) CrPC], but by a male police officer and the same was also not recorded by audio-video means [as required under proviso 1 to Section 161 (3) CrPC].

Court's observations

In this regard, the Court referred to Proviso First and Second to Section 161 (3) CrPC (examination of witnesses by Police), which has been reproduced below: -

In this backdrop, the Court also took exception to the practice of relying upon the second statement under section 161 Cr.P.C. of the victim/prosecutrix after recording her statement under Section 164 CrPC (Recording of confessions and statements).

In this regard, the Court observed thus:

"The practice of recording the second statement under section 161 Cr.P.C. of the victim/prosecutrix after recording her statement under Section 164 Cr.P.C. is on the higher side and in some cases, conclusions are drawn by the Investigating Officer on the basis of the second statement under section 161 Cr.P.C., ignoring the statements under Section 164 Cr.P.C."

Significantly, opining that statement under Section 164 CrPC (Recording of confessions and statements) prevails over the statement under Section 161 CrPC, the Court also added that it is a common argument of the prosecution in all such cases that there is no bar for recording the second statement under section 161 Cr.P.C. of the victim/prosecutrix.

Further, the Court noted that in a criminal offence, high responsibility lies upon the Investigating Officer not to conduct an investigation in a tainted and unfair manner, which may legitimately lead to the grievance of the accused that unfair investigation was carried out with an ulterior motive.

"It must be impartial, conscious, and uninfluenced by any external influences. Avoiding any kind of mischief, effort should be made to bring the guilty to law as nobody stands above the law…The proper investigation is one of the essentials of the criminal justice system and an integral facet of rule of law. The investigation is delicate painstaking and dexterous process, therefore ethical conduct is also essential and the investigation should be free from objectionable features or legal infirmities," the Court concluded by observing.