Chhattisgarh HC Orders Judicial Magistrate To Appear As ‘Defence Witness’ To Prove Authenticity Of S.164 Statement Of Victim In POCSO Case

The Chhattisgarh High Court has ordered a trial Court to call the Judicial Magistrate, who recorded the statement of the victim under Section 164 of the Code of Criminal Procedure, to appear as a ‘defence witness’ to prove authenticity of the statement of the victim.

The Single Bench of Justice Sanjay Kumar Jaiswal was hearing a revision application filed by the applicant impugning the order of the First Additional Sessions Judge (POCSO), Janjgir Champa who had rejected his application to call the Judicial Magistrate (First Class), Pamgarh as a ‘defence witness’ to prove the veracity of the statement of the victim recorded under Section 164, CrPC.

The revision applicant was accused of and faced trial for commission of offences under Sections 363, 366 and 376 of the IPC and Sections 4 and 6 of the Protection of Children from Sexual Offences Act (POCSO Act).

The applicant was alleged to have allured the minor victim aged about 15 years and took her with him on the pretext of marriage and had physical relation with her for several times. The victim was rescued and a case under the aforesaid charges was filed against the applicant.

After investigation, the charge sheet was filed by the police. After framing of charges, a number of witnesses were examined by the prosecution. After the statement of the accused was recorded under Section 313 of the CrPC, the case was fixed for defence evidence.

At the stage of defence evidence, when the accused presented an application to call the Judicial Magistrate as a witness on his behalf, the impugned order was passed.

Sumit Singh, counsel for applicant argued that in her statement during trial, the victim made exaggerated narrations in support of the prosecution case. However, he alleged that she had not made any accusation against the applicant while giving her statement under Section 164 of the CrPC.

When the victim was confronted with the statement, which she had given under Section 164, she out-rightly denied to have given any such statement to the Judicial Magistrate concerned. Thus, the counsel contended that in such a situation, it has become necessary for the applicant to get the statement of the Judicial Magistrate recorded as a ‘defence witness’ in the trial Court so as to ascertain veracity of the said statement. However, the State prayed for dismissal of the revision application.

After hearing the arguments for the parties, the Court placed reliance upon the judgment of the Supreme Court in P. Yuvaprakash v. State Rep. by Inspector of Police wherein the Judicial Magistrate who had recorded the statement of the victim under Section 164 of the CrPC was examined as a ‘defence witness’ to prove its veracity.

Therefore, having regard for the precedent set by the Apex Court, the Court was of the considered view that the applicant should be given full opportunity to defend himself in the case at hand and for that, it is necessary to know the authenticity of the victim’s statement recorded under Section 164.

“From this point of view, it would be appropriate to record the statement of the concerned Judicial Magistrate before the trial Court,” the Court observed.

Accordingly, the revision application was allowed and the trial Court was directed to take the necessary steps to cause the examination of the concerned Judicial Magistrate as a defence witness.

Counsel for the Applicant: Mr. Sumit Singh, Advocate

Counsel for the State: Mr. Vinod Tekam, P.L.

Case Title: Rakesh Kumar Ratre v. State of Chhattisgarh

Case No: CRR No, 996 of 2023

Date of Order: November 03, 2023

Click Here To Read/Download Order