The Allahabad High Court while allowing a petition said that the lower courts are issuing certified copies of the victim’s statements recorded u/s 164 Cr.P.C (now section 183 BNSS) which is legally not permissible.
The Division Bench of Justice Vivek Kumar Birla and Justice Arun Kumar Singh Deshwal passed this order while hearing a petition filed by Smt Ujala and Another.
The petition has been preferred with the prayer to quash the First Information Report dated 27.6.2024, registered as Case under Sections 363, 366 IPC, P.S Bardah, District Azamgarh and for a direction to the respondents not to arrest the petitioners in pursuance of impugned First Information Report.
Pursuant to the orders of the Court dated 24.7.2024 and 08.8.2024, A.G.A has filed compliance affidavit annexing therewith copy of the statement of the victim/petitioner no1 herein recorded u/s 164 Cr.P.C and the case diary showing the ossification test report.
According to the statement of victim/petitioner no 1 herein recorded u/s 164 Cr.P.C the victim has not supported the prosecution version and has categorically stated that she left her home willingly with Arvind, petitioner no 2 herein and they have married each other as well and there was consented physical relationship. As per the ossification test report, the victim is aged above 18 years and below 22 years.
Reliance has been placed by counsel for the petitioners on a judgement and order dated 5.12.2022 to submit that under identical circumstances the petition was allowed and FIR therein was quashed.
“In view of the above discussion, we are of the considered view that from the first information report, no offence under Section 366 IPC is made out, in as much as, both the petitioners are major and petitioner no 1 had left her home with petitioner no 2 willingly and is living with him as a married woman”, the court observed while allowing the petition.
The First Information Report dated 27.6.2024, registered as Case under Sections 363, 366 IPC, P.S. Bardah, District Azamgarh as well as all consequential proceedings are hereby quashed by high court.
The Court noted that in a number of cases, the statements recorded u/s 164 Cr.P.C are being filed by the accused/petitioners before the Court while challenging FIR under Article 226 of the Constitution of India. This practice has been strictly deprecated by the Apex Court in the case of ‘State of Karnataka vs Shivam (2014) 8 SCC 913 as well as in A vs State of U.P and another (2020) 10 SCC 505. The Apex Court in the above mentioned cases clearly observed that accused or any other person has no right to receive copy of statements recorded u/s 164 Cr.P.C until cognizance is taken by the concerned court / Magistrate on charge sheet/police report filed u/s 173 Cr.P.C.
It was also observed by the Apex Court that immediately after recording statement u/s 164 Cr.P.C, copy of the same be given to Investigating Officer with specific direction that contents of such statement should not be disclosed to any person till charge sheet / police report u/s 173 Cr.P.C is filed.
Therefore, the Court also strictly deprecates this practice of annexing the statement of the victim recorded u/s 164 Cr.P.C by the accused-petitioners and further is of the view that concerned Magistrates/courts should not issue certified copies of the statement recorded u/s 164 Cr.P.C as deprecated by the Apex Court to any person till cognizance is taken on the charge sheet / police report.
Therefore, the Court directed the Registrar General of the Court to bring this order in the knowledge of the Chief Justice so that if it is found appropriate, a circular may be issued to the District Courts of the State of UP.
The Court further directed that the Investigating Officers shall not supply a copy of the statements recorded u/s 164 Cr.P.C (now section 183 BNSS) to any person during investigation.