164 Statement: A Judicial Cloak of Justice for Victims

Introduction

This article traces the origin and traverses the judicial path of 164 statement¹ of rape or sexual offence victim and offers some suggestions which may strengthen the existing framework.

Origin

Nirbhaya, a young girl brutally gang raped in a moving bus on the streets of Delhi sent chilling waves across the country, alarming the pillars of our democracy, to wake up and to shake up. As a response, the Government constituted a Committee headed by Justice J.S. Verma, a retired Supreme Court Judge, to look into possible amendments in criminal laws to provide for quicker trials and enhanced punishments for punishing criminals of sexual assault of extreme nature against women. Accordingly, on 23-1-2013 the Committee submitted a 644 page report² detailing the issues and proposals for amendments in criminal laws.

One of the Committee recommendations was that the statement of a victim of rape (Section 376 IPC³) or other sexual offences i.e. outraging modesty of women (Section 354 IPC⁴), sexual harassment (Section 354-A IPC⁵), assault or criminal force with an intent to disrobe a woman (Section 354-B IPC⁶), voyeurism (Section 354-C IPC⁷), stalking (Section 354-D IPC⁸), etc. shall be recorded by a Judicial Magistrate instead of a police officer.

For the victims who are mentally or physically disabled the Committee recommended that,

(i) Judicial Magistrate shall take assistance of an interpreter or special educator for recording the statement of such victim;

(ii) the statement shall be videographed; and

(iii) the statement of such victim recorded by the Judicial Magistrate shall be considered as statement in lieu of examination-in-chief and the victim can be cross-examined directly on such statement without need for recording examination-in-chief at the time of trial.

The disability of the victim may be permanent or temporary, in nature.

Interestingly, at this juncture, there was no provision in the law which required that the statement of a victim of rape or sexual offences has to be recorded by a Judicial Magistrate. Rather, the statement of the victim of rape or sexual offences was recorded by the police officer investigating the particular case. Such an investigating officer is termed as “IO” and the statement recorded by IO is termed as “161 statement”.

The 161 statement has no value in the eye of the law and at best can be used to confront or contradict the person who has made such a statement at the time of cross-examination. This in effect meant, that, despite giving the 161 statement to a police officer the victim will have to step into the witness box and subject herself to examination-in-chief and cross-examination, thereby forcing herself to relive the horror of the crime again and protracting the trial. Though, as noted above, the Committee’s recommendations gave some succour to physically or mentally disabled victims, whose 164 statement recorded by the Magistrate is to be treated as examination-in-chief. However, the situation remains the same for victims of rape or sexual offences who are not physically or mentally disabled, as the 164 statement is judicially held to be a non-substantive piece of evidence.

Accordingly, these recommendations were accepted and incorporated “as it is” in the Code of Criminal Procedure (CrPC)⁹ by adding a sub-section to the already existing Section 164¹⁰ in the Code. Section 164(5-A)(a) deals with recording of statement of victim of rape or sexual offences including mentally or physically disabled victim by a Judicial Magistrate and Section 164(5-A)(b) deals with treating the statement of such physically or mentally disabled victim as examination-in-chief subject to cross-examination at trial, as elaborated above.

This is how the statutory mandate of recording the statement of victims of rape or sexual offences by Judicial Magistrate and not police officer came to exist on the statute books with effect from 13-3-2013.

With the passage of time, the statement of a victim of rape or sexual offences recorded by the Judicial Magistrate was formally termed as ‘164 statement’.

Expansion of offences covered by Section 164(5-A) CrPC

While the nation was still reeling from the wounds of Nirbhaya case¹¹, two separate incidents of rape of minor girls, colloquially known as Unnao Rape case¹² and Kathua Rape case¹³ stirred the people of this country.

Again, criminal laws were amended. This had an impact on Section 164(5-A) CrPC as well. A category of new sexual offences introduced in IPC found place in Section 164(5-A) CrPC, that is, rape resulting in death or persistent vegetative state of the victim (Section 376-A IPC¹⁴), rape on women under 12 years of age (Section 376-AB IPC¹⁵), sexual intercourse by husband upon wife during his separation (Section 376-B IPC¹⁶), sexual intercourse by a person in authority (Section 376-C IPC¹⁷), gang rape (Section 376-D IPC¹⁸), gang rape on women under 16 years (Section 376-DA IPC¹⁹) or 12 years (Section 376-DB IPC²⁰). This meant the statement of victims of the said offences shall also be recorded by a Judicial Magistrate and not a police officer. This came into effect from 21-4-2018.

Supreme Court directions on 164 statement: Shivanna case

Meanwhile, interestingly, the Supreme Court was seized of a matter²¹ where the State of Karnataka had assailed the judgment and order of the Karnataka High Court by which the sentence of life imprisonment for conviction of offence of rape under Section 376 IPC was reduced to ten years.

On 30-8-2013, while dealing with this matter, the Supreme Court took cognizance of the recurrence of heinous crime of rape and gang rape across the country including metropolitan cities and was of the opinion that drastic amendments need to be made to the Code of Criminal Procedure in order to ensure fast-track trial for rape victims.

In its order dated 30-8-2013²², the Supreme Court expressed its view of exploring the possibility, that, at least in the trial of rape cases, the statement of the victim as well as witnesses, be recorded for the first time itself before Judicial Magistrate under Section 164 CrPC and the same be kept in a sealed cover to be treated as deposition of the witnesses and hence be admissible at the stage of trial with liberty to the defence to cross-examine them.

After extensive hearings and deliberations, on 25-4-2014²³ the Supreme Court in exercise of its inherent power under Article 142²⁴ of the Constitution of India, issued directions in the form of mandamus to all police station in-charge in the country. This decision is reported as State of Karnataka v. Shivanna²⁵. Relevant part of these directions is set out herein:

10. … Hence exercising powers under Article 142 of the Constitution, we are pleased to issue interim directions in the form of mandamus to all police stations-in-charge in the entire country to follow the directions of this Court which are as follows:

10.1. Upon receipt of the 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 CrPC. A copy of the statement under Section 164 CrPC should be handed over to the investigating officer immediately with a specific direction that the contents of such statement under Section 164 CrPC should not be disclosed to any person till charge-sheet/report under Section 173 CrPC is filed.

11. A copy of this order thus be circulated to all the Directors General of Police of all the States/Commissioners of Police in metropolitan cities/Commissioners of Police of union territories who are then directed to send a copy of this order to all the police stations in charge of 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/Commissioner of Police be also issued to all the police stations-in-charge by the DGPs/Commissioners of Police incorporating the directions issued by us and recorded hereinbefore.

12. The matter be posted again after four weeks to ensure compliance with this order by the DGPs and Commissioners of Police in the country before the appropriate Bench and also for such further order or orders which may be considered necessary.

These directions in Shivanna case²⁶ gave a further impetus to the Section 164 statement given by a rape victim to the Judicial Magistrate. First, it cast an obligation on the “IO” to take steps for immediate recording of the statement of the rape victim before the Judicial Magistrate. Second, it casted an obligation on the Judicial Magistrate to record the statement of rape victim and give a copy of this 164 statement to the IO with a specific direction not to disclose the contents of 164 statement to any person till charge-sheet is filed in the court. Third, it specifically prohibited IO coupled with a duty to ensure that the contents of 164 statement of a rape victim remain guarded. In effect it means that if there is a violation of these directions such a police officer/investigating officer can be held in contempt of court.

Implementation of Shivanna’s directions, a myth or reality: Swami Chinmayanand case and Eega case

By virtue of Article 141²⁷ of the Constitution of India, the above directions in Shivanna case²⁸ became the law of the land. But whether these directions have percolated in practice and being followed, it is something only time can tell.

After 6 years of Shivanna case²⁹, one such instance surfaced before the Supreme Court in A v. State of U.P.³⁰ (infamously known as Swami Chinmayanand case³¹), where the accused received a copy of 164 statement during the course of the investigation, that too, on an order passed by the High Court.

More interestingly, though the victim challenged the decision of the High Court by filing a special leave petition before the Supreme Court but copy of the 164 statement was made over to the accused before the SLP could be heard and when the SLP was taken up by the Supreme Court, a prayer was made for withdrawal of appearance on ground of no instructions. However, the Supreme Court did not accede to this request, rather outrightly rejected it and proceeded to hear the SLP.

Again, the Supreme Court, sitting in a 3-Judge Bench reiterated the position in Shivanna case³² emphasising much more upon the need to maintain confidentiality in such matters. In the decision dated 8-10-2020³³ the Supreme Court specifically laid down that the logical extension of the directions in Shivanna case³⁴ is that no person is entitled to a copy of the statement recorded under Section 164 CrPC till appropriate orders are passed by the court after the charge-sheet is filed. This is to say, the right to receive a copy of such statement will arise only after cognizance is taken and at the stage contemplated under Sections 207³⁵ and 208³⁶ CrPC and not before. This decision is reported as A v. State of U.P.³⁷

Another instance which recently travelled to the corridors of the Supreme Court was in Eega Soumya v. M. Mahender Reddy³⁸, where the Supreme Court expressed its anguish stating that despite authoritative pronouncements and directions by the Supreme Court in Shivanna case³⁹ and Swami Chinmayanand case⁴⁰the accused received a copy of Section 164 CrPC statement of the victim and unfortunately the courts concerned also did not notice the violation of these directions by the accused.

The instances before us may not even be a handful, as the victims who are spread across the country, may not only be unknown to this protection afforded to their 164 statement, but for various other reasons, may not be in a position to approach the Supreme Court or may simply withdraw as happened in Swami Chinmayanand case⁴¹ etc., however, the duty lies upon each functionary working the wheels of administration of criminal justice system that the victims’ rights are realised to the hilt of it, not only in metro cities but even in the farthest corners of this country.

Suggestions

A few suggestions which may strengthen the administration of criminal justice in this arena are herein:

First, the directions in Shivanna case⁴² are confined to victims of rape. Whereas the 164 statement encompasses within its ambit victims of rape as well as other sexual offences. Hence, it is suggested that directions in Shivanna case⁴³ read with Swami Chinmayanand case⁴⁴ be extended to all sexual offences and not only be confined to rape.

Second, as noted by the Supreme Court in its decision dated 1-11-2022 in Eega Soumya v. M. Mahender Reddy⁴⁵, every High Court should make appropriate modifications or amendments to the criminal practice or trial rules incorporating provisions consistent with the directions issued by the Supreme Court in Shivanna case⁴⁶ and Swami Chinmayanand case⁴⁷.

Third, the Code of Criminal Procedure may suitably be amended to incorporate the directions of the Supreme Court in Shivanna case⁴⁸ and Swami Chinmayanand case⁴⁹. The proposed provision may read as, “no person shall be entitled to a copy of the statement recorded under Section 164 of the Code of Criminal Procedure, 1973 of the victim in sexual offences. The right to receive a copy of such statement shall arise only at the stage contemplated by Sections 207 and 208 of the Code of Criminal Procedure and not before”.

Fourth, in line with the view expressed by the Supreme Court in the order dated 30-8-2013⁵⁰, set out above, and Section 164(5-A)(b) CrPC the possibility of treating Section 164 statement of the victim recorded by the Judicial Magistrate, as examination-in-chief, subject to cross-examination by defence, at least in trial of rape cases, may be considered. Lastly, in order to ensure accountability, it is suggested that failure to comply with the directions laid down in Shivanna v. State of Karnataka⁵¹ and A v. State of U.P.⁵² should render (i) the police officer concerned liable for departmental action; (ii) accused persons/third-party liable for punishment extending up to 6 months and fine; and (iii) in addition to above, they should also be rendered liable to be punished for contempt of court and the proceedings for contempt of court may be instituted in any High Court of the country, having territorial jurisdiction over the matter. Additionally, the victim who is the maker of such statement should be entitled to receive immediate compensation from such accused persons/third party as determined by the Court.