IN THE HIGH COURT OF JUDICATURE AT MADRAS

DATED : 21.10.2021

CORAM:

THE HON'BLE MR.JUSTICE M.NIRMAL KUMAR

W.P.No.22269 of 2021

and

WMP.No.23483 of 2021

Palaniyammal

... Petitioner

Vs

State of Tamil Nadu

Represented by the Inspector of Police,

All- Women Police Station Mylapore,

Chennai – 600 004.

... Respondent

PRAYER: The Writ petition has been filed under Article 226 of

the Constitution of India to issue a writ of Certiorarified

mandamus calling for the records in Crime No.12 of 2021 pending

on the file of the AWPS Mylapore and quash the statement of the

victim recorded on 25.08.2021 by the learned XVIII Metropolitan

Magistrate, Saidapet under Section 164 of the Code of Criminal

Procedure, 1973 as illegal and contrary to the Section 164(5) of

CrPC and direct the respondent to seek recording the statement

of the victim afresh, in strict compliance with Section 164 (5)

CrPC.

For Petitioner

:

Mr.Poongkhulali

For Respondent

:

Mr.A.Damodaran

Addl.Public Prosecutor

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.

https://hcservices.ecourts.gov.in/hcservices/

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

aw