IO Can't Be Forced To Get Statement Of A Particular Witness Recorded U/S 183 BNSS: Allahabad High Court
Sparsh Upadhyay
18 Sep 2024 10:03 AM GMT
The Allahabad High Court has observed that it is the investigating agency's prerogative to sponsor the witness whose statement they want to record under Section 183 Bharatiya Nagarik Suraksha Sanhita 2023 [Recording of confessions and statements] and that an IO could not be forced to get the statement of any witness recorded under the said provision.
Section 183 of BNSS is almost in pari materia with Section 164 of CrPC 1973, which also deals with Recording confessions and statements.
A bench of Justice Saurabh Lavania made this observation while dealing with a plea filed by a couple seeking a direction to the Additional Chief Judicial Magistrate concerned to record the statement of the girl (applicant no.1) under Section 183 of BNSS in connection with a case lodged against the applicant no. 2 (boy) under Sections 137(2) [Kidnapping] and 87 [Kidnapping/Abduction for Marriage] of Bharatiya Nyay Sahinta.
The couple also sought a direction for the girl's medical examination.
Essentially, it was their case that applicant no. 1 (the prosecutrix) is now married to applicant no. 2, and they are living a happy married life. The father of applicant no. 1 lodged an FIR against applicant no. 2 and his parents, alleging that he had enticed his daughter away last month.
It was further submitted before the Court that applicant No. 1 is willing to appear before the Investigating Officer. Therefore, directions were sought to record her statement under Section 183 of the BNSS and conduct her medical examination.
On the other hand, the AGA raised a preliminary objection about the maintainability of the instant application on the ground that the matter is still under investigation and the charge sheet has not been filed; therefore, the applicants could not approach this Court under Section 528 BNSS.
It was further submitted that since applicant no.1 is not traceable, her statement recorded under Section 183 BNSS could not be recorded, nor could she be medically examined.
Having heard the counsels for both the parties, the Court, at the outset, noted that an IO couldn't be forced to get the statement of a particular witness recorded under Section 183 BNSS as it is the prerogative of the investigating agency to sponsor the witness whose statement they want to record under Section 183 BNSS.
The Court further observed that the Medical Examination of the prosecutrix (applicant no.1) could also not be done because she is herself hiding and not making herself available to the Investigating Officer.
In view of the above, the Court disposed of the plea with a direction to applicant no.1 to appear before the IO, who shall get applicant no.1 medically examined and produce her before the Magistrate for recording her statement under Section 183 BNSS.
The Court further provided that the IO shall maintain the decency of the applicant throughout her medical examination and recording of her statement, that she shall not be harassed or threatened, and that she shall be given fair treatment.
The Court further directed that a lady constable would accompany the prosecutrix during this period.
The Court also directed the concerned Magistrate before whom the prosecutrix (applicant no.1) shall be produced to record her statement to ensure that she is dealt with fairly.
The SSP Sitapur was also directed to ensure that applicant no.1 (prosecutrix) is provided adequate security and is not harassed by her parents, her family members or other persons during or after her medical examination or recording of her statement.
Case title - Kajal And Another vs. State Of U.P. Thru. Prin. Secy. Lko. And Another 2024 LiveLaw (AB) 583
Case citation: 2024 LiveLaw (AB) 583
