Filing Of The Charge-Sheet By Itself Does Not Entitle An Accused To Copy Of Statement Recorded U/s 164 CrPC: SC

      In a latest, landmark and extremely laudable judgment titled Miss A Vs State of Uttar Pradesh And Anr. In Criminal Appeal No. 659 of 2020 (Arising out of Special Leave Petition (Crl.) No. 10401 of 2019 delivered as recently as on October 8, 2020, a three Judge Bench of Apex Court headed by Justice Uday Umesh Lalit clearly, cogently and convincingly held that 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 of Criminal Procedure. This was so observed by the Apex Court while setting aside the Allahabad High Court order which had allowed the plea of former Union Minister and BJP leader Swami Chinmayanand to seek a certified copy of the statement of the rape victim. It was held that 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. Very rightly so!

To start with, this notable judgment authored by Justice Uday Umesh Lalit for himself, Justice Vineet Saran and Justice Ravindra Bhat sets the ball rolling by first and foremost observing in para 2 after granting leave in para 1 that, “This appeal arises out of order dated 07.11.2019 passed by the High Court of Judicature at Allahabad in Criminal Miscellaneous Application No. 39538 of 2019.”

While elaborating briefly the facts of the case, it is then stated in para 3 that, “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 and some others had sexually exploited the Appellant and many other girls; that the Appellant was not contactable; that he was apprehending danger to the Appellant; and that prompt action be taken in the matter.”

Going forward, it is then revealed in para 4 that, “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.”

What’s more, the Bench then discloses in para 5 that, “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’).”

Not stopping here, the Bench then reveals in para 6 that, “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 30.08.2029, 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.”

In hindsight, the Bench then recalls in para 7 that, “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 by law.

In view of the 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 Judicature at Allahabad to constitute a 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.””

As a corollary, it is then enunciated in para 8 that, “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 (2014) 8 SCC 913, it was stated:-

“… …If the copy of statement under section 164 is provided at this preliminary stage of investigation 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. 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.””

To put things in perspective, the Bench then lays bare the sequence of events in para 9 by stating that, “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.”

As it turned out, para 14 then discloses that, “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 shall not be disclosed to any person till charge-sheet/report under Section 173 of the Code was filed.”

Quite remarkably, the Bench then postulates in para 15 that, “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 (1985) 2 SCC 537 para 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.”

To state the obvious, it is then held in para 16 that, “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.”

Most significantly, the Bench then makes it amply clear in para 17 by expounding, “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 State of Karnataka by Nonavinakere Police vs. Shivanna alias Tarkari Shivanna (2014) 8 SCC 913 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.”

Truly speaking, the Bench of Apex Court then pooh-poohs the findings of the High Court by holding in para 18 that, “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.”

Without mincing any words, the Bench then directs in para 19 that, “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 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.”

As an aside, it must also be mentioned here that it is then mentioned in para 20 that, “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 Shivanna as explained hereinabove.” Finally, the appeal is then allowed in last para 21.

On the whole, this noteworthy judgment makes it crystal clear that filing of the charge-sheet by itself does not entitle an accused to a copy of the statement recorded under Section 164 CrPC. The accused can then come to know many things which can endanger the safety of the victim as we have already discussed in detail in Shivanna case apart from accused leaving 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. This will make a complete farce and a complete mockery of the criminal justice system which under no circumstances can ever be allowed to happen and will help the accused to easily get acquitted! How can judiciary ever allow this? This alone explains why the three-Judge Bench of the Apex Court has ruled so decisively on this!

Sanjeev Sirohi