State of Karnataka v. Shivanna

REPORTABLE
IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICITON
SPECIAL LEAVE PETITION (CRL.) NO. 5073/2011
State of Karnataka by Nonavinakere Police
..Petitioner
Versus
Shivanna @ Tarkari Shivanna
..Respondent
ORDER
1.
Vide order dated 30.08.2013, we had proposed to
consider this matter on merit after service of notice to the

accused-respondent as we felt acutely concerned as to why
the Union of India should not take initiative
and steps to
evolve a procedure for fast track justice to be adopted by

the Investigating Agencies and
the Fast Tract Courts
by
proposing amendments into the Cr.P.C. for speedy justice to

the victim.
1
Page1
2.
We had noted that the Fast Tract Courts no doubt
are being constituted for expeditious
disposal of
cases
involving the charge of rape at the trial stage, but we are

perturbed and anguished to notice that although there are
Fast Tract Courts for disposal of such cases, we do not yet
have a fast track procedure for dealing with cases of rape
and gang rape lodged under Section 376 IPC with the result
that such heinous offences are repeated incessantly.
3.
We had further observed that there is a pressing
need to introduce drastic amendments into the Cr.P.C. in the

nature of fast tract procedure for Fast Track Courts when we
considered just and appropriate to issue notice and called
upon the Union of India to file its response as to why it
should not take initiative and sincere steps for introducing
necessary amendment
trial
for the charge of
into the Cr.P.C.,
1973
Rape by directing
involving
that all the
witnesses who are examined in relation to the offence and

incident
of rape cases
should be straightway produced
preferably before the Lady Judicial Magistrate for recording

their statement to be kept in sealed cover and thereafter the
2
Page2
same be treated as evidence at the stage
of trial by
producing the same in record in accordance with law which

may be put to test by subjecting
it to cross-examination.
We were and are further of the view that the statement of

victim should as far as possible
be recorded preferably
before the Lady Judicial Magistrate under Section
164
Cr.P.C. skipping over the recording of statement by the

Police under Section 161 Cr.P.C. to be kept in sealed cover
and thereafter the same be treated as evidence at the stage
of trial which may be put to test by subjecting it to crossexamination. We are further of the view that the statement
of victim should as far as possible be recorded preferably
before the Lady Judicial Magistrate under Section 164 Cr.P.C.
skipping over the recording of statement
by the police
under Section 161 Cr.P.C. which is any case is inadmissible

except for contradiction so that the
statement
of the
accused thereafter be recorded under Section 313 Cr.P.C.

The
Court
accused then can be committed to the appropriate

for trial whereby the
trial court can
straightway
3
Page3
allow cross examination of the witnesses whose evidence

were recorded earlier before the Judicial Magistrate.
4.
What
we
wished
to
emphasize
is
that
the
recording of evidence of the victim and other witnesses

multiple times ought to be put to an end which is the
primary reason for delay of the trial. We are of the view that
if the evidence is recorded for the first time itself before the
Judicial Magistrate under Section 164 Cr. P.C. and the same
be kept in sealed cover to be produced and treated as
deposition of the witnesses and hence admissible at the
stage of trial with liberty to the defence to cross-examine
them with further liberty to the accused to lead his defence
witness and other evidence with a right to cross-examination
by the prosecution, it can surely cut short and curtail the
protracted trial if it is introduced at least for trial of rape
cases which is bound to reduce the duration of trail and thus
offer a speedy remedy by way of a fast track procedure to
the Fast Track Court to resort to.
5.
Considering the consistent recurrence of the
heinous crime of rape and gang rape all over the country
4
Page4
including the metropolitan cities, we are of the view that it is

high time such measures of reform in the Cr. P.C. be
introduced after deliberation and debate by the legal
fraternity as also all concerned.
6.
We had therefore issued notice to the Union of
India as also the Law Commission of India and all the State
Law Commissions and the Law Secretaries of the States for
eliciting their views on the subject. The Law Commission of
India filed its response to the same, and although in principle
agree that the proposed changes in the Cr.P.C. are justified,
it is of the opinion that the same might
investigation of the case
by the police.
prejudice the
Thereafter, we
thought appropriate to invite the views of the legal fraternity

and hence a general notice was issued to the Members of
the Bar to assist the Court considering the importance of the
issue raised.
7.
We,
thereafter
appointed
counsel Mr. Shekhar Naphade and

appeared and addressed this Court.
advocate
Mr. Shekhar Naphade
the
learned
senior
Mr. U.U. Lalit, who

Learned senior
agreed with the
5
Page5
suggestions given by this Court that the statement of the

victim
of rape and gang rape may be and should be
recorded under Section 164 of the Cr.P.C. which should be

placed on record treated as evidence of the victim and may
later be relied upon as evidence and then the accused may
be given a chance to cross-examine the prosecution version
and the evidence recorded at the instance of the victim.
8.
Learned senior counsel Mr. Shekhar Naphade was
good enough to give us a brief note in this regard.
The
learned Addl. Solicitor General Mr. Siddharth Luthra also

ably
assisted us and drew the attention of this Court
regarding the implications on the trial in case the statement

of victim is recorded under Section 164 Cr.P.C. and is made
admissible for the purpose of trial.
9.
On considering the same, we have accepted the
suggestion offered by the learned counsel who appeared

before us and hence exercising powers under Article 142 of
the Constitution, we are pleased to issue interim directions
in the form of mandamus to all the police station in charge
6
Page6
in the entire
country to follow the direction of this Court
which are as follows:

(i)
Upon receipt of information relating to

the commission of offence of rape, the
Investigating Officer
shall make
immediate steps to take the victim to
any Metropolitan/preferably Judicial
Magistrate for the purpose of recording
her
statement under Section 164
Cr.P.C.
A copy of the statement
under Section 164 Cr.P.C. should be
handed over to the Investigating
Officer immediately with a specific
direction that the contents of such
statement under Section 164 Cr.P.C.
should not be disclosed to any person
till charge sheet/report under Section
173 Cr.P.C. is filed.
(ii)
The Investigating Officer shall as far as

possible
take
the victim to the
nearest Lady Metropolitan/preferably
Lady Judicial Magistrate.
(iii)
The Investigating Officer shall record

specifically the date and the time at
which he learnt about the commission
of the offence of rape and the date and
time at which he took the victim to the
Metropolitan/preferably Lady Judicial
Magistrate as aforesaid.
(iv)
If there is any delay exceeding 24

hours in taking the victim to the
Magistrate, the Investigating Officer
should record the reasons for the same
7
Page7
in the case diary and hand over a copy

of the same to the Magistrate.
(v)
10.
Medical Examination of the victim:

Section 164 A Cr.P.C. inserted by Act
25 of 2005 in Cr.P.C. imposes an
obligation on the part of Investigating
Officer to get the victim of the rape
immediately medically examined. A
copy of the report of such
medical
examination should be immediately
handed over to the Magistrate who
records the statement of the victim
under Section 164 Cr.P.C.
A copy of this order thus be circulated to all the
Director Generals of Police of all the States/Commissioner of

Police in Metropolitan cities / Commissioner of Police of
Union Territories
who are then directed to send a copy of
this order to all the police stations in charge in their

States/Union Territories
are
for its compliance in cases which
registered on or after the receipt of a copy of these
directions.
Necessary
Commissioners of Police
station
incharge
incorporating
by
the
instructions
by
the
DGPs/
be also issued to all the police

DGPs/Commissioner
of
Police
the directions issued by us and recorded
hereinbefore.
8
Page8
11.
ensure
The matter be posted again after four weeks to

compliance
Commissioners
of
of
Police
this
in
order
the
by
country
the
DGS
before
&
the
appropriate Bench and also for such other further order or

orders which may be considered necessary.
.J.
(Gyan Sudha Misra)
.J.
(V. Gopala Gowda)
New Delhi,
April 25, 2014
9
Page9

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REPORTABLE

IN THE SUPREME COURT OF INDIA

Vide order dated 30.08.2013, we had proposed to

consider this matter on merit after service of notice to the

evolve a procedure for fast track justice to be adopted by

the Fast Tract Courts

proposing amendments into the Cr.P.C. for speedy justice to

We had noted that the Fast Tract Courts no doubt

are being constituted for expeditious

involving the charge of rape at the trial stage, but we are

We had further observed that there is a pressing

need to introduce drastic amendments into the Cr.P.C. in the

for the charge of

into the Cr.P.C.,

witnesses who are examined in relation to the offence and

should be straightway produced

preferably before the Lady Judicial Magistrate for recording

same be treated as evidence at the stage

producing the same in record in accordance with law which

We were and are further of the view that the statement of

before the Lady Judicial Magistrate under Section

Cr.P.C. skipping over the recording of statement by the

under Section 161 Cr.P.C. which is any case is inadmissible

accused thereafter be recorded under Section 313 Cr.P.C.

accused then can be committed to the appropriate

trial court can

allow cross examination of the witnesses whose evidence

recording of evidence of the victim and other witnesses

Considering the consistent recurrence of the

including the metropolitan cities, we are of the view that it is

We had therefore issued notice to the Union of

thought appropriate to invite the views of the legal fraternity

counsel Mr. Shekhar Naphade and

Mr. Shekhar Naphade

Mr. U.U. Lalit, who

suggestions given by this Court that the statement of the

of rape and gang rape may be and should be

recorded under Section 164 of the Cr.P.C. which should be

Learned senior counsel Mr. Shekhar Naphade was

good enough to give us a brief note in this regard.

learned Addl. Solicitor General Mr. Siddharth Luthra also

assisted us and drew the attention of this Court

regarding the implications on the trial in case the statement

On considering the same, we have accepted the

suggestion offered by the learned counsel who appeared

country to follow the direction of this Court

which are as follows:

Upon receipt of information relating to

The Investigating Officer shall as far as

The Investigating Officer shall record

If there is any delay exceeding 24

in the case diary and hand over a copy

Medical Examination of the victim:

A copy of this order thus be circulated to all the

Director Generals of Police of all the States/Commissioner of

who are then directed to send a copy of

this order to all the police stations in charge in their

for its compliance in cases which

registered on or after the receipt of a copy of these