IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICITON
SPECIAL LEAVE PETITION (CRL.) NO. 5073/2011
State of Karnataka by Nonavinakere Police ..Petitioner
Versus
REPORTABLE
Shivanna @ Tarkari Shivanna ..Respondent
O R D E R
1. Vide order dated 30.08.2013, we had proposed to
consider this matter on merit after service of notice to the
accused-respondent as we felt acutely concerned as to why
the Union of India should not take initiative and steps to
evolve a procedure for fast track justice to be adopted by
the Investigating Agencies and the Fast Tract Courts by
proposing amendments into the Cr.P.C. for speedy justice to
the victim.
1
Page 1
2. We had noted that the Fast Tract Courts no doubt
are being constituted for expeditious disposal of cases
involving the charge of rape at the trial stage, but we are
perturbed and anguished to notice that although there are
Fast Tract Courts for disposal of such cases, we do not yet
have a fast track procedure for dealing with cases of rape
and gang rape lodged under Section 376 IPC with the result
that such heinous offences are repeated incessantly.
3. We had further observed that there is a pressing
need to introduce drastic amendments into the Cr.P.C. in the
nature of fast tract procedure for Fast Track Courts when we
considered just and appropriate to issue notice and called
upon the Union of India to file its response as to why it
should not take initiative and sincere steps for introducing
necessary amendment into the Cr.P.C., 1973 involving
trial for the charge of ‘Rape’ by directing that all the
witnesses who are examined in relation to the offence and
incident of rape cases should be straightway produced
preferably before the Lady Judicial Magistrate for recording
their statement to be kept in sealed cover and thereafter the
2
Page 2
same be treated as evidence at the stage of trial by
producing the same in record in accordance with law which
may be put to test by subjecting it to cross-examination.
We were and are further of the view that the statement of
victim should as far as possible be recorded preferably
before the Lady Judicial Magistrate under Section 164
Cr.P.C. skipping over the recording of statement by the
Police under Section 161 Cr.P.C. to be kept in sealed cover
and thereafter the same be treated as evidence at the stage
of trial which may be put to test by subjecting it to cross-
examination. We are further of the view that the statement
of victim should as far as possible be recorded preferably
before the Lady Judicial Magistrate under Section 164 Cr.P.C.
skipping over the recording of statement by the police
under Section 161 Cr.P.C. which is any case is inadmissible
except for contradiction so that the statement of the
accused thereafter be recorded under Section 313 Cr.P.C.
The accused then can be committed to the appropriate
Court for trial whereby the trial court can straightway
3
Page 3
allow cross examination of the witnesses whose evidence
were recorded earlier before the Judicial Magistrate.
4. What we wished to emphasize is that the
recording of evidence of the victim and other witnesses
multiple times ought to be put to an end which is the
primary reason for delay of the trial. We are of the view that
if the evidence is recorded for the first time itself before the
Judicial Magistrate under Section 164 Cr. P.C. and the same
be kept in sealed cover to be produced and treated as
deposition of the witnesses and hence admissible at the
stage of trial with liberty to the defence to cross-examine
them with further liberty to the accused to lead his defence
witness and other evidence with a right to cross-examination
by the prosecution, it can surely cut short and curtail the
protracted trial if it is introduced at least for trial of rape
cases which is bound to reduce the duration of trail and thus
offer a speedy remedy by way of a fast track procedure to
the Fast Track Court to resort to.
5. Considering the consistent recurrence of the
heinous crime of rape and gang rape all over the country
4
Page 4
including the metropolitan cities, we are of the view that it is
high time such measures of reform in the Cr. P.C. be
introduced after deliberation and debate by the legal
fraternity as also all concerned.
6. We had therefore issued notice to the Union of
India as also the Law Commission of India and all the State
Law Commissions and the Law Secretaries of the States for
eliciting their views on the subject. The Law Commission of
India filed its response to the same, and although in principle
agree that the proposed changes in the Cr.P.C. are justified,
it is of the opinion that the same might prejudice the
investigation of the case by the police. Thereafter, we
thought appropriate to invite the views of the legal fraternity
and hence a general notice was issued to the Members of
the Bar to assist the Court considering the importance of the
issue raised.
7. We, thereafter appointed the learned senior
counsel Mr. Shekhar Naphade and Mr. U.U. Lalit, who
appeared and addressed this Court. Learned senior
advocate Mr. Shekhar Naphade agreed with the
5
Page 5
suggestions given by this Court that the statement of the
victim of rape and gang rape may be and should be
recorded under Section 164 of the Cr.P.C. which should be
placed on record treated as evidence of the victim and may
later be relied upon as evidence and then the accused may
be given a chance to cross-examine the prosecution version
and the evidence recorded at the instance of the victim.
8. Learned senior counsel Mr. Shekhar Naphade was
good enough to give us a brief note in this regard. The
learned Addl. Solicitor General Mr. Siddharth Luthra also
ably assisted us and drew the attention of this Court
regarding the implications on the trial in case the statement
of victim is recorded under Section 164 Cr.P.C. and is made
admissible for the purpose of trial.
9. On considering the same, we have accepted the
suggestion offered by the learned counsel who appeared
before us and hence exercising powers under Article 142 of
the Constitution, we are pleased to issue interim directions
in the form of mandamus to all the police station in charge
6
Page 6
in the entire country to follow the direction of this Court
which are as follows:
(i) 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 Section 164
Cr.P.C. A copy of the statement
under Section 164 Cr.P.C. should be
handed over to the Investigating
Officer immediately with a specific
direction that the contents of such
statement under Section 164 Cr.P.C.
should not be disclosed to any person
till charge sheet/report under Section
173 Cr.P.C. is filed.
(ii) The Investigating Officer shall as far as
possible take the victim to the
nearest Lady Metropolitan/preferably
Lady Judicial Magistrate.
(iii) The Investigating Officer shall record
specifically the date and the time at
which he learnt about the commission
of the offence of rape and the date and
time at which he took the victim to the
Metropolitan/preferably Lady Judicial
Magistrate as aforesaid.
(iv) If there is any delay exceeding 24
hours in taking the victim to the
Magistrate, the Investigating Officer
should record the reasons for the same
7
Page 7
in the case diary and hand over a copy
of the same to the Magistrate.
(v) Medical Examination of the victim:
Section 164 A Cr.P.C. inserted by Act
25 of 2005 in Cr.P.C. imposes an
obligation on the part of Investigating
Officer to get the victim of the rape
immediately medically examined. A
copy of the report of such medical
examination should be immediately
handed over to the Magistrate who
records the statement of the victim
under Section 164 Cr.P.C.
10. A copy of this order thus be circulated to all the
Director Generals of Police of all the States/Commissioner of
Police in Metropolitan cities / Commissioner of Police of
Union Territories who are then directed to send a copy of
this order to all the police stations in charge in their
States/Union Territories for its compliance in cases which
are registered on or after the receipt of a copy of these
directions. Necessary instructions by the DGPs/
Commissioners of Police be also issued to all the police
station incharge by the DGPs/Commissioner of Police
incorporating the directions issued by us and recorded
hereinbefore.
8
Page 8
11. The matter be posted again after four weeks to
ensure compliance of this order by the DGS &
Commissioners of Police in the country before the
appropriate Bench and also for such other further order or
orders which may be considered necessary.
New Delhi,
April 25, 2014
…………………………….J.
(Gyan Sudha Misra)
…………………………….J.
(V. Gopala Gowda)
9
Page 9
