HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH ?A.F.R. Court No. - 7 Case :- MISC. BENCH No. - 4555 of 2015 Petitioner :- Sattar Ali Respondent :- The State Of U.P Thru Secy., Home Deptt., Lucknow And Ors. Counsel for Petitioner :- J.N Singh Counsel for Respondent :- Govt. Advocate Hon'ble Ajai Lamba,J.
Hon’ble Akhtar Husain Khan,J.
1. This petition seeks issuance of a writ in the nature of certiorari quashing First Information Report lodged as Case Crime No. 2306 of 2014, under Sections 376, 506 I.P.C., P.S. Kotwali Dehat, district Bahraich (Annexure-1).
2. Contention of learned counsel for the petitioner is that the prosecutrix has given her statement under Section 164 CrPC during the course of investigation, according to which, it has been made evident that the petitioner did not commit offence of rape. It is on this premise, the petitioner seeks quashing of the First Information Report.
3. We have considered the contention of learned counsel in context of other facts and circumstances emanating from the pleadings.
4. Perusal of First Information Report indicates that respondent No.3, the alleged victim/prosecutrix approached the police authorities with the allegation that on 17.4.2014, she was alone at home when the petitioner entered the house and committed rape. When father of the prosecutrix returned home, the entire incident was reported. The police authorities were approached the next day morning, however, no action was taken. Thereafter, the prosecutrix approached Human Rights Commission. On the intervention of the Human Rights Commission, impugned criminal proceedings have been initiated.
5. This case raises a very important issue. The Courts these days are coming across a large number of cases, in which false allegation of rape and other similar cases of violation of a female is made by girls. Ordinarily, such allegations are not supported by medical evidence indicating receipt of injury during forcible sexual intercourse or other injuries received in the process of resisting commission of rape, however, going by the law, statement of the prosecutrix is accepted to prosecute the accused named by the prosecutrix. This Court has also noticed that in a large number of cases, prosecutrix resiles from her statement, while appearing as prosecution witness.
6. In a case of rape and other cases of this nature, the victim/ prosecutrix is the best witness. Serious credence is attached to the statement of such a witness, by a Court of law on the trust that the victim having been violated in a crime by passion will not concoct a false story so as to falsely implicate an accused.
7. Court is conscious of the fact that on implication of an accused, the accused has to stand protracted trial through various stages, initially through investigation and arrest and thereafter, framing of charge and recording of statement of witnesses. Court is also mindful of the fact that the police authorities are involved in investigation of such cases. Large number of public servants are engaged in the process. Already heavily burdened Courts of law are further burdened with such cases. Such cases are also taken up on priority basis considering such offences as crime against society at large.
8. This Court is also cognizant of the ground reality that after allegation of rape is made against a person, the social and family life of such person is torn down. If such a person has applied for a job in private or public sector, employment is denied for the reason that criminal proceedings involving moral turpitude are pending. The rights of such accused in the course of trial are limited. Subsequent discharge or acquittal of a person implicated on false allegations cannot repair the damage already caused.
9. In the present case, a specific allegation has been made by the prosecutrix that offence of rape was committed on 17.4.2014. Possibly, the police authorities had suspicion on the story set up by the prosecutrix and therefore, did not register First Information Report. The prosecutrix pursued her case by way of approaching Human Rights Commission, on whose intervention, impugned proceedings have been initiated.
10. During the course of investigation, the Investigating Officer bound by the provisions of Sub Section 5A(a) and 5A(b) of Section 164 CrPC sponsored the prosecutrix for recording of her statement under the said provision. The provisions of Sub Section 5A(a) and 5A(b) are as under :
“164. Recording of confessions and statements.-
[(5A)(a) In cases punishable under section 354, section 354A, section 354B, section 354C, section 354D, sub-section (1) or sub-section (2) of section 376, section 376A, section 376B, section 376C, section 376D, section 376E or section 509 of the Indian Penal Code (45 of 1860), the Judicial Magistrate shall record the statement of the person against whom such offence has been committed in the manner prescribed in sub-section (5), as soon as the commission of the offence is brought to the notice of the police;
Provided that if the person making the statement is temporarily or permanently mentally or physically disabled, the Magistrate shall take the assistance of an interpreter or a special educator in recording the statement;
Provided further that if the person making the statement is temporarily or permanently mentally or physically disabled, the statement made by the person, with the assistance of an interpreter or a special educator, shall be video graphed.
(b) A statement recorded under clause (a) of a person, who is temporarily or permanently mentally or physically disabled, shall be considered a statement in lieu of examination-in-chief, as specified in section 137 of the Indian Evidence Act, 1872 (1 of 1872) such that the maker of the statement can be cross-examined on such statement, without the need for recording the same at the time of trial.]”
11. The said provision was inserted in the Code book with effect from 3.2.2013.
12. Be that as it may, in the statement given under Section 164 CrPC, the prosecutrix has denied the fact that offence of rape had been committed on her. The excuse given therefor is that she had made allegations on the asking of some other persons, and also that she is an illiterate person.
13. For reporting an offence of rape, literacy of a victim is not relevant. Perusal of the First Information Report itself indicates that it is not a vague statement; rather specific allegations have been made.
14. By virtue of the allegations made in the First Information Report, the petitioner has been adversely affected. This Court, under the circumstances, would like to see the investigation reach its logical end.
15. Considering totality of facts and circumstances of the case, this Court would not like to exercise extraordinary writ jurisdiction while relying on the statement of the prosecutrix who has been approbating and reprobating within a span of months.
16. Petition is accordingly dismissed.
17. The investigating agency is directed to investigate the case and file a police report. In case it is found that the prosecutrix had given information to a public servant which she knew to be false, intending thereby to cause such public servant to use the lawful power to injure the accused, the relevant provisions of the Indian Penal Code and Code of Criminal Procedure shall be invoked so as to prosecute the prosecutrix.
18. Superintendent of Police, Bahraich is directed to ensure that needful is done at the earliest so that a strong message is sent to the public at large that false implication would not be tolerated by the criminal justice delivery system.
Let a copy of the order be also conveyed to Deputy Inspector General of Police, Devi Patan Mandal.
Order Date :- 28.5.2015 kkb/