ORDER

The petitioner, who is the defacto complainant in Crime No.12/2021, has filed this writ petition seeking quashing of the statement of the victim recorded on 25.08.2021 by the learned XVIII Metropolitan Magistrate, Saidapet, Chennai under Section 164 Cr.P.C. since it is contrary to Section 164(5) Cr.P.C. and direct the respondent to record the statement of the victim afresh strictly complying with Section 164(5)

Cr.P.C.

2.The contention of the learned counsel petitioner is that the petitioner’s daughter was subjected to sexual assault and rape and an FIR in crime No.12/2021 was registered by AWPS Police, Mylapore on 15.08.2021 for offences under Sections 354A and 376(2)(k) & 506(I) IPC. The prosecutrix herein is a mentally retarded person with intellectual disability. The petitioner’s daughter is 21 years age and she is presently studying class – 10 at Vidyasagar Special School, at Koturpuram Chennai and completing her education through NIOS. Due to her mental incapability, the school is also providing special educator and care. In this case, taking advantage of her disability, the accused Dineshkumar, who is residing in L Block near the petitioner’s residence, had taken the petitioner’s daughter to his house and there, he had shown some obscene photographs in his mobile phone and thereafter, physically committed rape on her and further threatened her. Thereafter, the victim complained of pain and later, on enquiry she revealed the entire happenings. Hence, complaint has been lodged.

3.The offence itself has been committed taking advantage of the victim's health condition, due to the victims moderate intellectual disability. After registration of the FIR, the victim was subjected to several rounds of medical examination on 16.08.2021, 17.08.2021, 18.08.2021, 20.08.2021, 23.08.2021 and 24.08.2021 at the Government Hospital and she underwent psychiatric assessment at the Madras Medical College, Rajiv Gandhi General Hospital, where her I.Q was examined and found to be at 36% and psychiatrist examined her and diagnosed her with moderate intellectual disability. On 25.08.2021, the respondent police had directed the victim to be present at the Metropolitan Magistrate Court Complex at Saidapet for recording her

164 Statement. Mrs.Gandhimathi, who is a qualified Special Educator and who also teaches the victim at Vidyasagar School, knows about the victim’s mental capability and disability and regularly communicating with her, was present to assist the XVIII Metropolitan Magistrate Court, while recording the statement as mandated under Section 164(5) Cr.P.C. Though Mrs.Gandhimathi was present during the recording of statement, she was not allowed to interfere or facilitate to communicate with the victim girl. The XVIII Metropolitan Magistrate was aware of the presence of the educator and her qualification but failed to acknowledge her presence and did not seek any assistance while recording the 164 CR.P.C statement. The Metropolitan Magistrate questioned the victim and dictated the answers directly to the typist. When the Special Educator Gandhimathi offered to facilitate the questioning, the same was declined. Even the advocate, who had accompanied the petitioner and her daughter, though represented to the Magistrate to take assistance of Special Educator and recording the victim’s statement in her presence using her assistance is an essential requirement, the same was not considered by the Magistrate. As per Section 164(5A) Cr.P.C, the learned Magistrate ought to have taken the assistance of a special Educator or interpreter while recording the statement since the victim is a person with mental disability. In view of the same, the recording of the statement is not proper and the victim is unable to explain the entire happenings and events. When the victim was enquired by her mother, she had given the details but due to the abovesaid reason, the same could not be communicated properly and the 164 Statement is bereft of the vital as