Athulya v. State of Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE ALEXANDER THOMAS** **FRIDAY, THE 22ND DAY OF NOVEMBER 2019 / 1ST AGRAHAYANA, 1941 Crl.MC.No.7191 OF 2019(H)** **AGAINST THE ORDER/JUDGMENT IN CMP 3048/2019 DATED 02-08-2019 OF JUDICIAL MAGISTRATE OF FIRST CLASS -I,KOTTARAKKARA CRIME NO.478/2019 OF Ezhukone Police Station , Kollam** ## **PETITIONER/S:** **ATHULYA, AGED 23 YEARS, D/O.SUDHAKUMARY, THEKKEKANJIRAM VILA VEEDU, POCHAKKONAM MURI, EZHUKONE VILLAGE, KOTTARAKKARA TALUK.** **BY ADVS. SRI.C.R.SYAMMOHAN SMT.G.LAYA** ## **RESPONDENT/S:** **STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM - 682031.** ## **OTHER PRESENT:** **SRI.T.R.RENJITH, PUBLIC PROSECUTOR** **THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON 22.11.2019, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** ## **(CR)** ## **ALEXANDER THOMAS, J.** ================== Crl.M.C.No. 7191 of 2019 ================== Dated this the 22[nd] day of November, 2019 **O R D E R** The petitioner herein is the defacto complainant in Crime No. 478/2019 of Ezhukone Police Station, which has been registered for offences punishable under Secs. 451, 341, 354, 354D and 509 of the I.P.C. It is stated that the statement of the petitioner has been recorded by the competent Magistrate concerned. The statement of the petitioner, as the defacto complainant in this case, is stated to have been duly recorded by the competent Magistrate in terms of the provisions contained in Sec.164 of the Cr.P.C. According to the petitioner, she needs a copy of of said Sec. 164 Cr.P.C. statement given by her and for that purpose, she has submitted an application as Criminal Miscellaneous Petition No.3048/2019 before the Judicial First Class Magistrate's Court-I, Kottarakkara, who is dealing with the case in the abovesaid crime, for issuance of a ertified copy of her abovesaid Sec. 164 Cr.P.C. statement. 2. The learned Magistrate by the impugned Anx. A-1 order dated 2.8.2019 has rejected the said plea on the ground that final report has not so far been submitted in this case. It is this Crl.M.C.7191/19 - : 3 :- order at Anx.A-1 that is under challenge in this Criminal Miscellaneous Case. The prayers in this Crl.M.C. filed under Sec. 482 of the Cr.P.C. are as follows: - _“1. Issue appropriate directions directing the JFMC-1, Kottarakkara, where in Crime No. 478/2019 to the petitioner to furnish copy of the statement recorded under section 164 Criminal Procedure Code._ _2. Pass such other and further reliefs, as may be prayed for hereafter and deemed fit and proper, in the interest of justice.”_ 3. Heard Ms.B.Kalliani Krishna, learned counsel appearing for the petitioner (defacto complainant) and Sri. T.R.Renjith, learned Prosecutor appearing for the respondent State. 4. Ms.B.Kalliani Krishna, learned counsel appearing for the petitioner defacto complainant would point out that statement recorded under Sec. 164 of the Cr.P.C. by the competent Magistrate is a public document and that according to Sec.76 of the Indian Evidence Act, every public officer having the custody of a public document, which any person has a right to inspect, shall give that person on demand a copy of it on payment of the legal fees therefor, together with a certificate written at the foot of such copy that it is a true copy of such document or part thereof, as the case may be, and such certificate shall be dated and subscribed by such officer with his Crl.M.C.7191/19 - : 4 :- name and his official title, and shall be sealed, whenever such officer is authorized by law to make use of a seal and such copies so certified shall be called certified copies. Further that since the said statement is public document, the copy of the same is to be furnished to an applicant on payment of prescribed fee thereof. Further, the learned counsel appearing for the petitioner would point out that it is mandated in Sec. 154(2) of the Cr.P.C. that a copy of the information so recorded under Sec. 154(1) of the Cr.P.C. shall be given forthwith free of cost to the informant. Accordingly, it is urged by the learned counsel for the petitioner that the abovesaid provision made by the Parliament in Sec. 154(2) of the Cr.P.C., though it is in the context of the statement made by the first informant under Sec. 154 of the Cr.P.C., would throw light about the legislative policy and that the applicant is entitled, as of right, to get a certified copy of the Sec. 164 statement, etc. 5. In the decision in _**Naresh Kumar Yaday v. Ravindra Kumar & ors.**_ [(2008) 1 SCC 632], the Apex Court, while discussing the scope of ambit of Sec. 207 of the Cr.P.C. has observed that the accused and the informant therein have referred to several portions of the case diary. In the said decision, the Apex Court has observed that Crl.M.C.7191/19 - : 5 :- it is baffling to note that the accused and the informant referred to particular portions of the case diary and that at that stage of the bail application, they legally could not have got access to such materials. The Apex Court has therein has also held that the courts should take serious note when the accused and the informant refer to the case diary material to buttress their stands. Further in the decision in _**State of Karnataka by Nonavinakere Police v. Shivanna @ Tarkari Shivanna**_ [(2014) 8 SCC 913] the Apex Court has issued various directives in the form of mandamus to all Police Stations in charge in the entire country to follow the directions therein and specifically directed therein that a copy of the statement under Sec. 164 of the Cr.P.C. should be handed over to the IO immediately with a specific direction and has held therein that upon receipt of information relating to commission of offence of rape, the investigating officer shall make immediate steps to take the victim to any metropolitan/ preferably judicial Magistrate for the purpose of recording the victim's statement under Sec. 164 of the Cr.P.C. and further that a copy of such statement under Sec. 164 of the Cr.P.C. should be handed over to the IO immediately with a specific direction that the contents of such statement under Sec. 164 of the Cr.P.C. Crl.M.C.7191/19 - : 6 :- should not be disclosed to any person till the final report/charge sheet is filed under Sec. 173 of the Cr.P.C. It will be pertinent to refer to para 10.1 of the decision of the Apex Court in _**State of Karnataka**_ ## _**by Nonavinakere Police v. Shivanna @ Tarkari Shivanna**_ [(2014) 8 SCC 913, p.915], which reads as follows: _“10.1. Upon receipt of information relating to the commission of offence of rape, the Investigating Officer shall make immediate steps to take the victim to any Metropolitan / preferably Judicial Magistrate for the purpose of recording her statement under S.164 CrPC. A copy of the statement under S.164 CrPC should be handed over to the Investigating Officer immediately with a specific direction that the contents of such statement under S.164 CrPC should not be disclosed to any person till charge - sheet / report under S.173 CrPC is filed.”_ ## emphasis supplied 6. In view of the decision of the Apex Court in _**State of Karnataka by Nonavinakere Police v. Shivanna @ Tarkari**_ _**Shivanna**_ [(2014) 8 SCC 913], the abovesaid contention of the petitioner is only to be overruled as untenable, as even now the final report/charge sheet has not been filed in this case. The contention raised by the petitioner based on the provisions contained in Sec. 154(2) of the Cr.P.C., is with regard to the furnishing of copy of the first information statement as envisaged in Sec. 154(1) thereof to the first informant and the said provision does not have application on the issue as to whether Sec. 164 Cr.P.C. statement is to be furnished, to anyone other than the investigating agency, before the filing of the Crl.M.C.7191/19 - : 7 :- final report/charge sheet. Further the contentions of the petitioner based on Sec. 76 of the Evidence Act are also only to be overruled for the simple reason that a mere reading of the said provision will make it clear that the said provision can be invoked only when a person has right to inspect, demands such copy. In view of the abovesaid aspects, investigation by the Police in serious cases like sexual assault, sexual violence, etc., has to be handled with care and delicacy as the details of the investigation should not be unnecessarily made public, as it may affect the strategy of the investigation agency to take care of the actual realities and logistics in such process of investigation. It is in the light of these aspects that the Apex Court has categorically held in the abovesaid decision that, after recording of the Sec. 164 Cr.P.C., copy thereof is to be given to the investigating officer, but that copy thereof shall not be disclosed to any person till the final report/charge sheet is filed under Sec. 173 of the Cr.P.C. 7. Faced with the situation, the learned counsel appearing for the petitioner would then fervently plead that in the instant case, as the copy of Sec. 164 Cr.P.C. statement is being sought not by an outsider, but by the victim herself and that therefore the said direction issued by the Apex Court in paragraph 10.1 of Sivanna's Crl.M.C.7191/19 - : 8 :- supra, cannot have any application in the facts of this case and that this Court may direct the investigation agency to furnish the petitioner/ victim a copy of the statement. 8. After having heard the learned counsel for the petitioner and the learned Prosecutor and after careful consideration of the rival pleas, this Court is constrained to take the view that the said contention of the petitioner is not tenable and it is only to be overruled, in view of the abovesaid directions issued by the Apex Court in para 10.1 of _**Shivanna's case**_ supra and the prohibition is applicable so long as the final report has not been filed and the only exception made therein is that copy of the Sec. 164 statement is to be given to the investigating officer. 9. Further Ms.B.Kalliani Krishna, the learned counsel for the petitioner would submit that the petitioner victim wants to ensure and ascertain whether her versions narrated before the learned Magistrate have been fully and correctly recorded in the said statement under Sec. 164 of the Cr.P.C. or whether there are any omissions or deficiencies, etc. thereto, and for that purpose, this Court may pass necessary directions to the IO or to the learned Magistrate to at least permit the petitioner to peruse through the Crl.M.C.7191/19 - : 9 :- statement and to make necessary notes, only for the use of the petitioner so that in case there are any such omissions or lacuna in the statement, the petitioner can take further steps to ensure that endeavour could be made to get her additional statement recorded by the learned Magistrate under Sec. 164 if it is so warranted. 10. Without getting into further details in that regard, this Court would certainly appreciate that the victim may have to know the precise details of the contents of the statement so that her rights and interest for effectuating the prosecution of the case are duly protected. Accordingly, it is ordered that the petitioner along with her Advocate may approach the investigating officer concerned after prior intimation and make a request to give her an opportunity to peruse through the said statement and to make some brief notes regarding its contents. Thereupon the investigating officer will permit the petitioner/and her Advocate, if any to peruse through the said statement in the presence of Police officials and the petitioner may be permitted to make notes regarding the brief summary of the contents of the said statement. However, it is made clear that the investigating officer need not give any copy of the said statement to the petitioner and she cannot make a verbatim transcript of the contents of the said Crl.M.C.7191/19 - : 10 :- statement in the above process and she may only make a brief summary regarding the contents of the said statement after proper perusal and the petitioner shall not disclose the contents to any third parties. Of course in case the petitioner feels that her additional statement under Sec. 164 Cr.P.C., etc. may have to be recorded for cogent reasons, etc., then she can approach the investigating officer and for that limited purpose only the brief contents of the said statement could be used. However, after the filing of the charge sheet, the IO will furnish copy of the Sec. 164 statement to the petitioner. With these observations and directions, the above Criminal Miscellaneous Case stands finally disposed of. sdk+ Sd/- **ALEXANDER THOMAS, JUDGE** ## **APPENDIX** **PETITIONER'S/S EXHIBITS:** **ANNEXURE A1** **TRUE COPY JUDGMENT IN CMP NO.3048/2019 OF THE HONBLE JUDICIAL FIRST CLASS MAGISTRATE COURT, KOTTARAKKARA.**