Miss A vs The State Of Uttar Pradesh on 8 October, 2020


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Supreme Court of India

Miss A vs The State Of Uttar Pradesh on 8 October, 2020

Author: Uday Umesh Lalit

Bench: Uday Umesh Lalit, Vineet Saran, S. Ravindra Bhat

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          CRIMINAL APPEAL NO.659 OF 2020 @ SLP (CRL.)NO. 10401 OF 2019
          MISS “A”  VS. STATE OF UTTAR PRADESH AND ANR.




                                                                                    REPORTABLE
                                           IN THE SUPREME COURT OF INDIA
                                         CRIMINAL APPELLATE JURISDICTION
                                          CRIMINAL APPEAL NO.659 OF 2020
                               (Arising out of Special Leave Petition (Crl.) No.10401 of 2019)

                          MISS ‘A’                                                  …Appellant

                                                            Versus


                          STATE OF UTTAR PRADESH AND ANR.                           …Respondents


                                                      JUDGMENT

Uday Umesh Lalit, J.

1. Leave granted.

2. This appeal arises out of order dated 07.11.2019 passed by the

High Court1 in Criminal Miscellaneous Application No.39538 of 2019.

3. On 25.08.2019, the father of the Appellant lodged a Complaint

with Police Station Kotwali, District Shahjahanpur that he had seen a video

of the Appellant on her Facebook account alleging that Respondent No.2

Signature Not Verified and some others had sexually exploited the Appellant and many other girls;
Digitally signed by Dr.
Mukesh Nasa
Date: 2020.10.08
17:56:45 IST
Reason:

1 High Court of Judicature at Allahabad
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CRIMINAL APPEAL NO.659 OF 2020 @ SLP (CRL.)NO. 10401 OF 2019
MISS “A” VS. STATE OF UTTAR PRADESH AND ANR.

that the Appellant was not contactable; that he was apprehending danger to

the Appellant; and that prompt action be taken in the matter.

4. Thereafter, pursuant to a complaint filed by one Mr. Om Singh,

Advocate, to the effect that he looked after the legal work of the Ashram

run by Respondent No.2; and that an unknown person had threatened that

unless Rupees Five Crores were paid, the reputation of Respondent No.2 in

the society would be harmed. Said Complaint was immediately registered

as FIR No. 442 of 2019.

5. The Complaint filed by the father of the Appellant was registered

two days later as FIR No.445 of 2019 in respect of offences of abduction

and sexual harassment under Sections 506 and 364 of Indian Penal Code

(for short, ‘IPC’).

6. The Facebook video of the Appellant having gone viral, letters

were written to this Court by some advocates whereafter Suo Motu Writ

Petition (Crl.) No. 2 of 2019 was registered in this Court. On 30.08.2019 it

was reported to this Court that the Appellant was found in District Dausa

of State of Rajasthan. On 30.08.2019, this Court recorded the statement of

the Appellant that she did not intend to go back to Uttar Pradesh but would

meet her parents in Delhi. Certain directions were therefore passed.
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CRIMINAL APPEAL NO.659 OF 2020 @ SLP (CRL.)NO. 10401 OF 2019
MISS “A” VS. STATE OF UTTAR PRADESH AND ANR.

7. In its Order dated 02.09.2019, this Court observed:-

“We are not expressing any opinion regarding
the grievances expressed by the girl Miss “A”
and apprehensions of her parents. All that we
wish to point out is that the correctness of the
grievances/apprehension has to be addressed as
per the procedure established in law.

In view of above, we direct the Chief Secretary,
State of Uttar Pradesh, to constitute a Special
Team headed by a police officer in the rank of
the Inspector General of Police to be assisted by
the Superintendent of Police and a team of
police officers to enquire into the grievances
expressed by Miss “A” and insofar as the
apprehension expressed by the parents of Miss
“A”.

At this stage, Mr. Vikramjit Banerjee, learned
Additional Solicitor General, representing the
State of Uttar Pradesh along with Ms. Aishwarya
Bhati, learned Additional Advocate General, has
submitted that an FIR No.0445 dated
27.08.2019, against the management of the
Institution has been registered under Section 364
and 506 IPC., based on the complaint lodged by
the complainant-father of the girl Miss “A”. Mr.
Vikramjit Banerjee has also submitted that a
cross FIR No. 0442 dated 25.08.2019 has been
registered.

The investigation team to be constituted shall
take note of both the FIRs and proceed with the
investigation in accordance with law in both the
investigations and file status report before the
High Court.

Considering the facts and circumstances of the
case, we request the Chief Justice of the High
Court of Judicate at Allahabad to constitute a
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CRIMINAL APPEAL NO.659 OF 2020 @ SLP (CRL.)NO. 10401 OF 2019
MISS “A” VS. STATE OF UTTAR PRADESH AND ANR.

Bench to monitor the investigations in this
regard.

Insofar as the apprehension expressed by the
father of the girl about their safety, we direct the
Chief Secretary, State of Uttar Pradesh, to direct
the Superintendent of Police of the concerned
district, namely, Shahjahanpur, to afford
protection to the parents and family members of
the girl on assessing the threat perception. We
request the High Court to also review the
protection accorded to the family members of
Miss “A” and pass appropriate orders.”

8. Accordingly, Special Investigation Team (SIT) was set up and the

statement of the Appellant was recorded on 16.09.2019 by Judicial

Magistrate under Section 164 of the Code of Criminal Procedure (for short,

‘the Code’). On 17.09.2019, an application was filed by the Appellant that

there were certain lapses while recording her statement under Section 164

of the Code. On 17.09.2019 itself, an application was moved by

Respondent No.2 seeking certified copy of the statement of the Appellant

under Section 164 of the Code. The application was rejected by the

Additional District and Sessions Judge, Shahjahanpur, by order dated

19.09.2019. Relying on the decision of this Court in State of Karnataka

by Nonavinakere Police vs. Shivanna alias Tarkari Shivanna 2, it was

stated:-

“… …If the copy of statement under section 164 is
provided at this preliminary stage of investigation
2 (2014) 8 SCC 913
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CRIMINAL APPEAL NO.659 OF 2020 @ SLP (CRL.)NO. 10401 OF 2019
MISS “A” VS. STATE OF UTTAR PRADESH AND ANR.

then besides spilling all the beans of investigation
before the concerned person(s) who shall also come to
know names of all the key witness(es) involved in this
case, the health and safety of the victim(s) but also
that of all the key witnesses will be in peril. It is also
very likely that of all affected and concerned
person(s) will leave no stone unturned in influencing
the investigation itself and all key witnesses in their
favour much before any report is made under S.173
CrPC. All this is surely bound to ‘dent’ the
prosecution case. However, once the investigation is
over and a report is filed under section 173 of CrPC at
that stage the copy of the statement under Section 164
CrPC along with other relevant documents can be
asked by the concerned person.

In view of the above, application filed by the learned
counsel of the applicant Swami Chinmyanand
Saraswati to obtain copy of the statement under
Section 164 of CrPC is rejected for all the reasons
discussed above.”

9. On 20.09.2019 Respondent No.2 was arrested and his application

for bail was rejected by the Chief Judicial Magistrate, Shahjahanpur on

23.09.2019. On 22.10.2019 Criminal Miscellaneous Application No.39538

of 2019 was filed by Respondent No.2 in the High Court challenging the

order dated 19.09.2019. On 05.11.2019 charge-sheets were filed by SIT in

connection with FIR No. 442 of 2019 and FIR No. 445 of 2019. The

charge-sheet filed in Crime registered pursuant to FIR No. 445 of 2019

states that Respondent No.2 committed offences punishable under Sections

376C, 354D, 342, 506 of IPC.

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CRIMINAL APPEAL NO.659 OF 2020 @ SLP (CRL.)NO. 10401 OF 2019
MISS “A” VS. STATE OF UTTAR PRADESH AND ANR.

10. On 07.11.2019, Criminal Miscellaneous Application No. 39538 of

2019 was allowed by the High Court. The following observations from the

decision of the Division Bench of the High Court in Raju Janki Yadav vs.

State of U.P. and others3 were relied upon :-

“On these terms, we are of the view that any
application, if made, by any concerned person to
obtain a copy of the statement under Section 164
Cr.P.C., the same could never be denied to him if he is
ready to pay the costs admissible under Rules. …”

The High Court also recorded the statement of the learned

Advocate for the State as under:-

“Learned A.G.A. had sought time to seek instructions
for taking up the matter. Now he has received the
instructions. He has stated that a copy of the
statement of victim recorded under Section 164
Cr.P.C. ought to have been given to accused-applicant.

Impugned order has been erroneously passed by the
trial court by which it had refused to provide a copy
of the statement of the victim recorded under Section
164
Cr.P.C. to the accused-applicant.”

The High Court found that the decision of this Court in Shivanna2

would not get attracted for the following reason:-

“It was argued by the learned counsel for the
applicant that the said directions were issued only for
the police to be followed and not to the Court. I agree
with the said argument and I am of the opinion that
correct law has been laid down by the Division Bench

3 (2012) 6 All LJ 486 = Criminal Miscellaneous Writ Petition No.3567 of 2012 decided on
08.05.2012.

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CRIMINAL APPEAL NO.659 OF 2020 @ SLP (CRL.)NO. 10401 OF 2019
MISS “A” VS. STATE OF UTTAR PRADESH AND ANR.

of this Court in the case of Raju (supra), in view of
that it was bounden duty of the trial court to provide a
certified copy of the statement of the victim recorded
under Section 164 Cr.P.C. to the applicant subject to
payment of usual charges.

Accordingly, the impugned order is set aside and it is
directed that trial court shall provide a certified copy
of the statement of victim recorded under Section 164
Cr.P.C. to the applicant subject to payment of usual
charges.”

11. Before the Appellant could challenge the decision of the High

Court, by filing the instant Special Leave Petition on 13.11.2019, a copy of

her statement recorded under Section 164 of the Code was made over to

Respondent No.2.

12. When this Appeal was taken up for hearing, the learned Advocate

for the Appellant reported “no instructions” in the matter and prayed for

withdrawal of appearance. Since the matter raised questions of law, we

rejected the prayer and proceeded to hear the learned counsel for the

parties.

13. The directions issued by this Court in Shivanna2 were in the

following backdrop:-

“2. We had noted that the Fast Track 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 Track Courts for disposal of such cases,
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CRIMINAL APPEAL NO.659 OF 2020 @ SLP (CRL.)NO. 10401 OF 2019
MISS “A” VS. STATE OF UTTAR PRADESH AND ANR.

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 CrPC in
the nature of fast track 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 Criminal Procedure Code, 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 straightaway
produced preferably before the Lady Judicial
Magistrate for recording their statement to be kept in
sealed cover and thereafter the 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 CrPC skipping over the recording of
statement by the police under Section 161 CrPC 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.”

The directions issued by this Court were to the following effect:-

“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 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
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CRIMINAL APPEAL NO.659 OF 2020 @ SLP (CRL.)NO. 10401 OF 2019
MISS “A” VS. STATE OF UTTAR PRADESH AND ANR.

should not be disclosed to any person till charge-
sheet/report under Section 173 CrPC is filed.

10.2. The investigating officer shall as far as possible
take the victim to the nearest Lady
Metropolitan/preferably Lady Judicial Magistrate.

10.3. 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.

10.4. 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 in the
case diary and hand over a copy of the same to the
Magistrate.

10.5. Medical examination of the victim: Section 164-
A CrPC inserted by Act 25 of 2005 in CrPC 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 CrPC.”

14. It was, thus, directed by this Court that a copy of the statement of

the victim recorded under Section 164 of the Code be handed over by the

concerned Judicial Magistrate to the Investigating Officer with a specific

direction that the contents of such statement under Section 164 of the Code

should not be disclosed to any person till charge-sheet/report under Section

173 of the Code was filed.

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CRIMINAL APPEAL NO.659 OF 2020 @ SLP (CRL.)NO. 10401 OF 2019
MISS “A” VS. STATE OF UTTAR PRADESH AND ANR.

15. The Scheme of the relevant provisions of the Code shows that after

the conclusion of the investigation, an appropriate report under Section 173

of the Code is to be filed by the police giving information as required by

Section 173. In terms of Section 190 of the Code, the concerned

Magistrate may take cognizance of any offence inter alia upon a police

report. At the stage of exercise of power under Section 190 of the Code, as

laid down by this Court in number of decisions, the notable being the

decision in Bhagwant Singh vs. Commissioner of Police 4, the

Magistrate may deem fit that the matter requires further investigation on

certain aspects/issues and may pass appropriate direction. It is only after

taking of the cognizance and issuance of process that the accused is

entitled, in terms of Sections 207 and 208 of the Code, to copies of the

documents referred to in said provisions.

The filing of the charge-sheet by itself, does not entitle an accused

to copies of any of the relevant documents including statement under

Section 164 of the Code, unless the stages indicated above are undertaken.

16. Thus, merely because the charge-sheet was filed by the time the

High Court had passed the order in the present matter, did not entitle

Respondent No.2 to a copy of the statement under Section 164 of the Code.

4 (1985) 2 SCC 537 para 4
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MISS “A” VS. STATE OF UTTAR PRADESH AND ANR.

17. That apart, the reason that weighed with the High Court in placing

reliance on the decision of the Division Bench of the High Court rendered

in the year 2012 which was before the directions were passed by this Court

in Shivanna2 was completely incorrect. As logical extension of the

directions passed by this Court, no person is entitled to a copy of statement

recorded under Section 164 of the Code till the appropriate orders are

passed by the court after the charge-sheet is filed.

The right to receive a copy of such statement will arise only after

cognizance is taken and at the stage contemplated by Sections 207 and 208

of the Code and not before. The application of Respondent No.2 was,

therefore, rightly rejected by the Additional Sessions Judge and the order

so passed did not call for any interference by the High Court.

18. In our view, the High Court completely erred in appreciating the

directions issued by this Court, especially in a matter where the offences

alleged against accused are of sexual exploitation. In such matters utmost

confidentiality is required to be maintained. In our view, the High Court

completely failed in that behalf.

19. Though, a copy of the statement recorded under Section 164 of the

Code was made over to the accused, we must set aside the order passed by
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MISS “A” VS. STATE OF UTTAR PRADESH AND ANR.

the High Court and lay down that under no circumstances copies of

statements recorded under Section 164 of the Code can be furnished till

appropriate orders are passed by the Court after taking cognizance in the

matter.

20. We must also observe that the decision of the Division Bench of

the High Court on which reliance was placed in the present matter must be

held to be subject to the directions issued by this Court in Shivanna2, as

explained hereinabove.

21. This appeal is, therefore, allowed.

……………………………..J.

[Uday Umesh Lalit]

……………………………..J.

[Vineet Saran]

……………………………..J.

[S. Ravindra Bhat]
New Delhi;

8th October, 2020.



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