The main legal point established in the judgment is the right of the victim to have her statement recorded under Section 164 Cr.P.C. without the intervention of the prosecution agency, as per the amendment in Section 164(5A) Cr.P.C., and the recognition of the participatory rights of the victim in criminal proceedings.

ORDER :

Heard.

1. Instant petition has been filed by a victim in back drop of facts that she was subjected to forceful rape. Initially a missing report was lodged by the husband of victim as such it is the grievance that the statement for rape under Section 164 Cr.P.C. is not being recorded/sponsored by the prosecution agency despite all efforts by the victim.

2. As per the case of the petitioner/prosecutrix, she works as a garbage picker, when she reached the house of respondent No.5 certain spray were administered on her as such she became unconscious/semiconscious and thereafter rape was committed. It is stated such act recorded too which was subsequently made public in the internet, in common parlance was made viral. It is further stated that when she confronted the commission of sexual assault to the respondent, she was made to sign certain blank documents on the promise that contents of internet would be removed but eventually it did not happen. Allegations are that on 16/04/2022, at the initial stage when the prosecutrix was forcefully abducted a missing report was lodged by the husband of the prosecutrix at Police Station and case was registered. Subsequently because of certain video were made viral, offence under Section 67 and 67-A of the Information Technology Act was registered. It is stated that despite all persuasion made even by the representation to the higher officials of the police the statement of the prosecutrix is not being recorded which she wanted to get it recorded under Section 164 of the Cr.P.C.

3. Learned counsel for the petitioner would submit with the amendment made in Section 164 (5A) Cr.P.C. makes it mandatory to get the statement of the victim recorded under Section 164 Cr.P.C. in cases of sexual assault. He further submits that the Supreme Court in latest judgement of Jagjeet Singh & ors. Vs. Ashish Mishra @ Monu & Anr. in Criminal Appeal No.632/2022 considered the right of the victim and it was held that at the investigation stage too the victim would have a right to get her statement recorded. He also placed his reliance in (2000) 1 SCC 272 in between Jogendra Nahak & ors Vs. State of Orissa & ors. to submit that it is not necessary to get a witness to be sponsored by the prosecution agency he/she can volunteer also and the Magistrate would be under obligation to record the statement which would be part of the investigation, therefore the statement of the victim be ordered to be recorded under Section 164 Cr.P.C. before the concerned Magistrate.

4. Per contra, learned State counsel would submit that since the FIR was registered only under the Information Technology Act and no allegation of rape was made, therefore provisions of Section 164 (5A) of Cr.P.C. would not be applicable. He would submit that if the witness are given free hand to record their statement without the sponsor of the prosecution agency, it would lead to miscarriage of the justice and therefore the petition being devoid of merit is liable to be dismissed.

5. I have heard the learned counsel for the parties.

6. Along with the petition, two representation were made to the Superintendent of Police, Bemetara and also one to Inspector General of Police in month of April, 2022. Perusal of the same would show that allegations of forceful rape was clamped by victim. The question therefore would arise as to whether the statement of victim can be recorded without the intervention of the prosecution agency. In the instant case the petitioner is the victim. While deciding the case in Jagjeet Singh & ors. Vs. Ashish Mishra @ Monu & Anr. in Criminal Appeal No.632/2022 the Supreme Court while deciding a case of a bail analyzed the right of a victim. While elaborating the right of the victim, it held that until recently criminal law had been viewed on a dimensional plane wherein the Courts were required to adjudicate between the accused and the State. It held that the 'victim'- the de facto sufferer of a crime had no participation in the adjudi