Mandatory compliance with Section 164(5A) Cr.P.C. is required for recording statements of mentally disabled individuals; failure to follow this procedure renders the statement inadmissible as examination-in-chief.

ORDER :

Mohammad Nawaz

Petitioner is seeking quashing of the statement of the victim recorded by the learned Magistrate under Section 164 Cr.P.C., vide Annexure-D and the order dated 30.06.2022 passed by the learned Sessions Judge, vide Annexure-K and consequently seeking a direction to record the statement of the victim under Section 164 (5A) Cr.P.C. by following the due procedure.

2. Heard the learned counsel for petitioner and the learned High Court Government Pleader for respondent No.1 – State.

3. The charge–sheet is filed against the petitioner for offences punishable under Sections 376 (l) and 376 (n) of IPC alleging that he has committed sexual intercourse on a mentally challenged victim and made her pregnant. The statement of the victim / CW.4 was recorded under Section 164 of Cr.P.C. by the learned Magistrate on 17.03.2015.

4. In the course of trial, when the matter was posted for evidence, as the victim was not in a position to depose, a direction was issued to the Superintendent, Department of Clinical Psychology, Institute of Mental Health and Neuro Sciences, Dharwad, to assess and submit a detailed report regarding the mental condition of the victim. As per report, the victim was suffering from moderate intellectual disability and therefore, the Court opined that she is not fit to understand the Court proceedings, due to her underline moderate intellectual disability.

5. The defence filed a memo stating that the statement of the victim recorded under Section 164 of Cr.P.C. cannot be treated as her evidence, since proviso to Section 164 (5A) of Cr.P.C., was not complied, and statement of the victim was not recorded with the assistance of an interpreter or special educator and also not videographed.

6. The said memo filed by the defence was opposed by the learned Public Prosecutor, contending that the statement of the victim with mental disability, recorded under Section 164 of Cr.P.C. can be considered as statement in lieu of examination-in-chief, as specified under Section 137 of Indian Evidence Act, 1872 and therefore, maker of the said statement can be cross-examined, without the need for recording the same at the time of trial.

7. The learned Sessions Judge vide impugned order has rejected the memo filed by the defence, accepting the submission of the learned Public Prosecutor and posted the matter for cross-examination of CW.4 / victim with the assistance of an interpreter or special educator.

8. The question that would arise in this case is as to under what circumstance a victim, who is temporarily, permanently, mentally or physically disabled, whose statement is recorded under Section 164 of Cr.P.C. could be allowed to cross-examine during trial proceedings, without her evidence being recorded as required under Section 137 of the Indian Evidence Act, 1872.

9. Section 164 (5A) (a) of Cr.P.C. is extracted hereunder:-

“In cases punishable under section 354, section 354A, section 354B, section 354C, section 354D, sub-section (1) of sub-section (2) of section 376, [section 376A, section 376AB, section 376B, section 376C, section 376D, section 376DA, section 376DB], 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 videographed.”

10. A plain reading of the above provision makes it clear that, at the time of recording the statement of a perso