Baran Rape Case: Rajasthan High Court Directs Magistrate To Re-Record Statement Of Minor Victim In Compliance With S. 26 POCSO Act

The said provision, inter alia provides that the Magistrate or the police officer, as the case may be, shall record the statement as spoken by the child in the presence of the parents of the child or any other person in whom the child has trust or confidence.

A Single Bench of Justice Sanjeev Prakash Sharma has thus ordered the Magistrate to allow the IO's application seeking re-recording of the prosecutrix's statement in the presence of her parents.

It further directed that in future, as and when a case relating to POCSO Act comes up before any Magistrate, they are bound to follow the provisions of Section 26 of the POCSO Act while recording the statements under Section 164 CrPC at the first instance.

The case pertains to two teenage girls who were allegedly abducted and raped by two youths in Baran district of Rajasthan.

As per a report of India Today, the girls' father told the police that the two accused lured his minor daughters, aged 13 and 15, on the night of September 18 to leave Baran with them. They were taken to Kota, Jaipur and Ajmer and were allegedly raped for three days. The family alleged the girls were threatened not to file a complaint. They were found in Kota on September 21.

The Police however said that the girls in their statements before the Magistrate had "accepted" that they had gone with the boys on their own and that a medical examination had not confirmed rape.

It is in this backdrop that the Investigating Officer in the case had moved an application before the Magistrate for getting statements under section 164 CrPC recorded of the minor prosecutrix in terms of section 26 of the POCSO Act in the presence of the parents.

The Judicial Magistrate had however refused to accept the application against which revision was filed before the District & Sessions Judge, Baran who also rejected the revision vide order dated October 20, 2020.

Before the High Court, it was submitted that the earlier statement recorded under Section 164 CrPC was not in accordance with the provisions of the POCSO Act and therefore, the IO had a right to get the statements of the prosecutrix recorded again.

It was submitted that that mere apprehension that there might be lot number of such applications being moved by the concerned IO and there is a possibility of the concerned prosecutrix being tutored, cannot be a ground for rejecting such an application.

The application was also supported by the Public Prosecutor who submitted that that once an IO has moved an application, it should be allowed.

At this juncture, the High Court referred to Jogendra Nahak & Ors. v. State of Orissa & Ors., (2000) 1 SCC 272, and ruled "it is exclusive domain of the IO alone to move an application for getting statement recorded of any witness u/s 164 Cr.P.C. On moving such an application, the Magistrate will have to get the statement recorded".

Reliance was also placed on Lada Devi v. State of Rajasthan, whereby taking into consideration the overall circumstances, the High Court had directed the concerned IO to get the statement of the girl-prosecutrix again recorded by moving an application under Section 164 CrPC before the concerned Judicial Magistrate.

The Single Judge said,

"In the present case also, the circumstances show that the prosecutrix, who are minor in age, have not given their statements in terms of Section 26 of the POCSO Act. Provisions of POCSO Act are mandatory in nature.

In view, thereof, the application moved by the Investigating Officer could not have been rejected on the grounds which do not germane from the facts. Merely because there may be more number of applications in other cases, the Judicial Magistrate cannot be allowed to shirk from his responsibilities.

Learned District & Sessions Judge ought to have allowed the revision in this regard filed by the Dy. S.P., Baran."

Case Title: Satyaprakash Vaishnav v. State Of Rajasthan

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