A victim's statement under Section 164 of the CrPC cannot be recorded without the investigating agency's sponsorship to maintain the integrity of the judicial process.

JUDGMENT :

Pramod Kumar Agrawal, J.

1. The present application under S.482 of CrPC is being preferred against registration of the offences under S.363, S.366, S.376(2) (n), 376, 376(3) of the Indian Penal Code, 1860 read with S.3,4,5,6 of Protection of Children from Sexual offences Act, 2012 against the present applicant.

2. Learned Senior Advocate for the applicant submits that in the aforesaid offences, charge - sheet in respect of the main accused person namely Jai Dubey has already been filed, however against the present applicant, the investigation under 173(8) of the Criminal Procedure Code is still pending. The respondent No. 3, who happens to be the father of victim presented an application before the concerning Superintendent of Police for recording the statement of prosecutrix again under S.164 of the CrPC and thereafter, he appeared before the Special Judge (POCSO Act), Jabalpur and preferred an application that the statement of the victim under S.164 may be recorded again, so that the present applicant should not be falsely implicated in the case. The aforesaid application was dismissed by the Special Judge on the ground that the arrest, investigation and other proceedings are yet to take place in respect of the present applicant. The applicant has nothing to do with the offence alleged, continuation of the criminal proceedings against the present applicant would be sheer abuse of process of law. It is further submitted that there is no bar in law to prevent the victim from moving an application for recording the statement of the prosecutrix under S.164 of the CrPC for the second time or so on and in support this, reliance has been placed in the judgment dated 14.07.2022 passed in Writ Appeal No. 602/2022 (Halke Bhai Gond v. The State of M.P.). Learned Senior Advocate has not pressed the application regarding quashment of FIR but the only prayer made by the applicant is to direct the Special Judge (POCSO), Jabalpur (M.P.) for permitting the respondent No. 2 / prosecutrix to record her statement again under S.164 of the Criminal Procedure Code as the same is her legal right.

3. Learned counsel for the respondent Nos. 2 and 3 has supported the contentions made by the learned Senior Advocate for the applicant.

4. On the other hand, learned counsel for the State vehemently opposed the prayer on the ground that at the time of incident, prosecutrix was minor aged about 13 years. It is submitted that her statement under S.161 of CPC has been recorded by the police and statement under S.164 of the CrPC has been recorded before the Judicial Magistrate in which she has stated that present applicant and other co - accused person have committed rape upon her. No cogent reason has been mentioned in the application that why prosecutrix wants to record her statement under S.164 of the CrPC second time in this case. It is further submitted that learned Trial Court has rightly dismissed the application filed on behalf of the respondent No. 2 / prosecutrix for again recording her statement under S.164 of the CrPC.

5. I have heard learned counsel for the parties and perused the record.

6. It is found that at the time of incident, prosecutrix was aged about 13 years and she was recovered by the police on 11.12.2023 and just after her recovery, her statement was recorded on 13.12.2023 under S.161 of the CrPC by the police and on 14.12.2023 her statement under S.164 of the CrPC was recorded by the Judicial Magistrate in which she has deposed that present applicant and another co - accused have committed rape upon her. Thereafter, on 14.03.2024, application for recording her second statement under S.164 of the CrPC was presented by the father of the prosecutrix before the concerning Superintendent of Police and thereafter he has filed an applic