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Allahabad High Court · body

2012 DIGILAW 2987 (ALL)

Mohd. Yunus v. State of U. P.

2012-12-20

SUNIL HALI

body2012
Sunil Hali, J.;— Heard learned counsel for the applicant. 2. The applicant is the first informant in Case Crime No. 235 of 2012, under Section 364 I.P.C. It is alleged that the daughter of the applicant was abducted by the two accused persons and taken to Patiyala, where she was raped. A missing report was filed by her father and later on she was recovered. Thereafter, an application was filed before the Additional Chief Judicial Magistrate, Court No. 25, Saharanpur to refer the prosecutrix to some hospital for determining her mental state. In terms of the order dated 17.9.2012 she was referred to the I.H.B.A.S Mental Hospital, Agra and directed the Hospital authority to file a report within a period of seven days. 3. The report was submitted by the Medical Officer of the Institute, in his report he has stated that the prosecutrix is suffering from Provisional Diagnosis Mixed Dissociative Disorder with post traumatic Stress Disorder as a result of this, the patient is suffering from mental loss and is unable to remember the past. It has been certifed that she is suffering from accute mental stress on account of the trauma which she has under gone. She is advised to have constant checkups in this behalf. 4. It has also been observed that there is some improvement in the condition of the patient. Taking que from the observation made by the doctor that there is some improvement in her condition, the Investigating Officer filed an application before the Magistrate for recording her statement under Section 164 Cr.P.C. It also appears that prosecutrix was not handed over to the parents after she was recovered. The Magistrate on the application filed by the Investigation Officer got the statement of the prosecutrix recorded. The Informant came to know about this fact and filed an application before the Magistrate that she was not in a position to get her statement recorded. 5. The request was made by informant that her statement may be recorded afresh under Section 164 Cr.P.C.. The main contention raised by the informant was that she was not in a position to get her statement recorded in terms of the report submitted by the institute where she was referred. It was further contended that the accused persons inconnivance with the Investigating agency managed to get statement recorded in a manner which supported the case. The main contention raised by the informant was that she was not in a position to get her statement recorded in terms of the report submitted by the institute where she was referred. It was further contended that the accused persons inconnivance with the Investigating agency managed to get statement recorded in a manner which supported the case. It was further urged that accused persons involved in this case, inconnivance with he local politician managed to subvert the investigation in the matter. The accused Sarvesh is in the police service, Babu Khan is a Lekhpal and one of the relative of the accused Parvej Khan is a steno in the court of Ld. C.J.M. Saharanpur. 6. The application of the applicant was rejected by the Magistrate on the ground that no such application is maintainable as statement of prosecutrix has already been recorded under Section 164 Cr.P.C. It is also stated that her statement was recorded only after examining the report sent by the Medical Officer of the I.H.B.A.S Mental Hospital, Agra. 7. The prayer of the applicant is that the statement of the prosecutrix recorded by the Magistrate is also not tenable in law. It is further stated in the order that motive has been attributed to the court which cannot be accepted. 8. I have heard the learned counsel for the parties and perused the record. 9. The facts in this case are not in dispute that the prosecutrix was recovered on the basis of missing report. She was referred to the I.H.B.A.S. hospital on the direction issued by the Additional Chief Judicial Magistrate, Court No. 25, Saharanpur vide his order dated 17.9.2012. The report of Medical Officer, Agra was sent on 1.11.2012 and the statement of the prosecutrix was recorded on 9.11.2012. The statement of the prosecutrix was recorded on the request made by the Investigating Officer. The reasoning given by the trial court is that the statement of the prosecutrix was recorded only after examining the report submitted by I.H.B.A.S. Mental Hospital, Agra. The report of the doctor clearly reflects the mental state of prosecutrix, in which he has stated that the prosecutrix is suffering from Provisional Diagnosis Mixed Dissociative Disorder with post traumatic Stress Disorder. The report also mentioned that the patient is under stess. The report of the doctor clearly reflects the mental state of prosecutrix, in which he has stated that the prosecutrix is suffering from Provisional Diagnosis Mixed Dissociative Disorder with post traumatic Stress Disorder. The report also mentioned that the patient is under stess. Despite this report the Additional Chief Judicial Magistrate, Saharanpur has recorded the statement under Section 164 Cr.P.C. after certifying that her medical report has been examined. I faile to understand what was the other opinion relied upon by the concerned Magistrate while recording her statement under Section 164 Cr.P.C. On the date statement was recorded, prosecutrix was not in a proper state of mind to make statement under Section 164 Cr.P.C. It was clearly mentioned in the report that she suffers from memory loss. The trial court without application of mind for the reasons known to him has recorded the statement of the prosecutrix under Section 164 Cr.P.C. It is traversity of law that judicial officer of longstanding should have recorded the statement under Section 164 Cr.P.C. when admittedly she was not in a position to make statement. 10. Investigating Officer being aware of this fact that the prosecutrix was not in a position to make statement, filed an application before the Magistrate for getting her statement recorded under Section 164 Cr.P.C. After recovery of the prosecutrix she was not handed over to her parents. Instead of that he got her statement recorded under Section 164 Cr.P.C. when she was not in a position to make such statement. 11. The learned Magistrate has also fell in to the trap of investigating officer by getting the statement of the prosecutrix recorded under Section 164 Cr.P.C. He has ignored the report of Medical Officer in this behalf. Conduct of the Magistrate is uncalled for. He has shown lack of sensitivity in the matter. The statement of the prosecutrix recorded under Section 164 Cr.P.C. clearly exonerated the role of the accused persons. 12. I am of the considered view that the statement was recorded only with the sole purpose of helping the accused. It is directed that no reliance shall be placed on the statement of the prosecutrix recorded under Section 164 Cr.P.C. on 9.1.2012. 13. I accordingly direct that the statement of the prosecutrix be recorded by the Chief Judicial Magistrate, Saharanpur in presence of the informant within 15 days from the date of certified copy of this order. It is directed that no reliance shall be placed on the statement of the prosecutrix recorded under Section 164 Cr.P.C. on 9.1.2012. 13. I accordingly direct that the statement of the prosecutrix be recorded by the Chief Judicial Magistrate, Saharanpur in presence of the informant within 15 days from the date of certified copy of this order. 14. Let an explanation be called from Additional Chief Judicial Magistrate, Saharanpur, Court No. 4 as to why the statement of the prosecutrix was recorded under Section 164 Cr.P.C. when she was not in a position to make the same, in view of the report submitted by the Medical Officer I.H.B.A.S., Agra. The Investigating Officer is also directed to appear in person before this Court along with case diary and also file an affidavit to indicate steps taken by him to arrest the accused persons in this behalf. 15. List this case on 23.1.2013. 16. The Magistrate shall also file explanation on or before 23.1.2013. In case he failed to do so he shall present himself before this Court. The role of Additional Chief Judicial Magistrate Court No. 25 also cannot be ignored. He has in utter disregard of the facts rejected the application of the applicant. 17. Copy of this order be communicated to the concerned Magistrate Court No. 4 and 25, Saharanpur through registry. _____________