The Allahabad High Court has said that the victim and the accused have a legal right to have a fair, independent and correct investigation of the crime.
A Single Bench of Justice Sanjay Kumar Singh heard a Criminal Appeal filed by Akash.
During the course of argument, it is pointed out by the counsel for the appellant that in the case, F.I.R was lodged on 22.07.2021 against five accused persons, Gaurav, Govind, Bhola, Neeraj and Akash for the offence under Sections 328, 342, 366A, 376D, 506 IPC and Sections 3/4 POCSO Act.
During investigation, after the statement of the victim under Section 161 Cr.P.C, her statement under Section 164 Cr.P.C was recorded by the Magistrate concerned on 17.08.2020 and in both the statements, she has made specific allegation of gang rape against all the five accused persons named in the F.I.R. Thereafter, the Investigating Officer, after getting the second statement (majeed bayan) of the victim recorded on 27.10.2020 on his own through woman Constable Madhuri exonerated the co-accused Gaurav, Bhola and Neeraj adopting pick and choose policy on the basis of alleged second statement dated 27.10.2020 of the victim ignoring her statement under Section 164 Cr.P.C and submitted charge-sheet dated 08.11.2020 and 09.4.2021 under Sections 342, 376D, 506 IPC and Sections 3(2)5 S.C/S.T Act against Govind and Akash (appellant) respectively.
Much emphasis has been given by contending that the Investigating Officer did not conduct fair investigation and in order to nullify the statement under Section 164 Cr.P.C and with a view to extend undue favour to co-accused Gaurav, Bhola and Neeraj got the second statement (majeed bayan) of the victim recorded through women police officer in violation of 1st proviso to Section 161(3) Cr.P.C, which provides that statement made under this subSection may also be recorded by audio-video electronic means.
It is also submitted that in this case, provisions of Schedule Castes and Schedule Tribes Act, 1989 is also applicable but the Investigating Officer has also failed to comply the provisions of sub-Section 10 of Section 15A of the SC/ST Act wherein it is provided that “all the proceedings under this Act shall be video recorded.”
M.C Chaturvedi, Additional Advocate General submitted that for compliance of provisions provided in 1st and 2nd provision to Section 161(3) Cr.P.C. State Government has already issued a circular on 01.09.2021 in compliance of order dated 11.08.2021 passed in Criminal Misc Bail Application and thereafter Director General of Police, U.P in order to ensure the amended provision of Section 161 Cr.P.C has also issued circular on 29.10.2021 and recently on 20.5.2022 directing that in case of violation of provisions provided in 1st and 2nd proviso to Section 161(3) Cr.P.C action shall be taken against the erring officials in accordance with law.
He also submitted that the officer concerned shall look into the matter with all fairness. He prayed for and was allowed four weeks’ time to seek proper instruction in the matter.
“Having heard the counsel for the parties, I noticed that such allegations are constantly coming before the Court, therefore, prima-facie matters require consideration, because fair investigation is the legal right of the victim as well as the accused”, the Court observed.
“On the next date, the Senior Superintendent of Police, Aligarh and the investigating officer concerned shall appear in person before the Court.
The investigating officer shall show cause by filing his personal affidavit as to why the statement of the victim has not been recorded by audio-video means. In case the statement of the victim has been recorded by audio-video means, the same shall be produced before the Court.
The Senior Superintendent of Police, Aligarh shall file his personal affidavit indicating that in last one year in how many cases amended provisions of Section 161 Cr.P.C and provisions of sub-Section 10 of Section 15A of the SC/ST Act have been complied with in true sense and audio-video recordings of such statements have been submitted along with police report to the concerned court below and in how many cases, the said provisions have not been followed. The details of both the aforesaid categories of the cases shall be brought on record separately along with the affidavit”, the order reads.
The Court has fixed the next hearing of the petition on July 11, 2022.