STATE OF KARNATAKA BY NONAVINAKERE POLICEversusSHIVANNA @ TARKARI SHIVANNA

                          [2014] 5 S.C.R. 812


A      STATE OF KARNATAKA BY NONAVINAKERE POLICE
                                    v.
                 SHIVANNA @ TARKARI SHIVANNA
           (Special Leave Petition (Crl.) No. 5073 of 2011)

                            APRIL 25, 2014
B
      [GYAN SUDHA MISRA AND V. GOPALA GOWDA, JJ.]

          Penal Code, 1860 - s. 376 - Rape - Consistent
     recurrence of rape and gang rape all over the country
C    including the metropolitan cities - Reform in Code of Criminal
     Procedure - Requirement of - Fast track procedure for dealing
     with cases of rape and gang rape - Medical Examination of
     the victim - Power exercised by Supreme Court u/Art.142 of
     the Constitution - Interim directions issued in the form of
-o   mandamus to all the police stations in charge in the entire
     country - Upon receipt of information relating to commission
     of offence of rape, the Investigating Officer to take immediate
     steps to take the victim to any Metropolitan/preferably Judicial
     Magistrate for recording her statement u/s. 164 CrPC - A copy
E    of the statement u/s. 164 CrPC to be handed over to the
     Investigating Officer immediately with a specific direction that
     the contents of such statement uls. 164 CrPC be not disclosed
     to any person till charge sheet/report u/s. 173 CrPC is filed -
     The Investigating Officer, as far as possible, to take the victim
F    to the nearest Lady Metropolitan/preferably Lady Judicial
     Magistrate - The Investigating Officer to 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 - If any delay exceeding 24 hours in taking the
G    victim to the Magistrate, the Investigating Officer to record the
     reasons for the same in the case diary and hand over a copy
     of the same to the Magistrate - s. 164 A CrPC inserted by Act
     25 of 2005 in Cr.P.C. imposes obligation on the part of

H                                  812
    STATE OF KARNATAKA BY NONAVINAKERE                     813
    POLICE v. SHIVANNA @ TARKARI SHIVANNA
Investigating Officer to get the victim of the rape immediately   A
medically examined - A copy of the report of such medical
examination to be immediately handed over to the Magistrate
who records the statement of the victim u/s. 164 CrPC - Code
of Criminal Procedure, 1973 - ss. 164, 164A and 173 -
Constitution of India, 1950 - Art. 142.                           B

      CRIMINAL APPELLATE JURISDICITON: Special Leave
Petition (Crl.) No. 5073 of 2011.

     From the Judgment & Order dated 19.01.2010 of the High
Court of Karnataka at Bangalore in Criminal Appeal No. 1215       C
of 2006.

    V.N. Raghupathy for the Appellant.

     Pragati Neekra, Ardhendumauli Kumar Prasad, Ranjan
                                                                  0
Mukherjee, Kamal Mohan Gupta, B. Krishna Prasad, Arputham,
Aruna & Co., D. Mahesh Babu, V.N. Raghupathy, Liz Mathew,
A.K. Kaul, R. Nedumaran, P.K. Tuli, B.V. Balaram Das, Anip
Sachthey, K.N. Madhusoodhanan, T.G. Narayanan Nair,
Aniruddha P. Mayee for the Respondent.
                                                                  E
    The following Order of the Court was delivered

                         ORDER

    1. Vide order dated 30.08.2013, we had proposed to
consider this matter on merit after service of notice to the      F
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.     G

     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     H
    814     SUPREME COURT REPORTS                  [2014) 5 S.C.R.


A 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
8
    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
C   take initiative and sincere steps for introducing necessary
    amendment into the Cr.P.C., 1973 involving trial for the charge
    of 'Rape' by directing 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
D   cover and thereafter the 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
E   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 cross-
F   examination. 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
G   for contradiction so that the statement of the accused thereafter
    be recorded under Section 313 Cr.P.C. The accused then can
    be committed to the appropriate Court for trial whereby the trial
    court can straightway allow cross examination of the witnesses
    whose evidence were recorded earlier before the Judicial
H   Magistrate.
    STATE OF KARNATAKA BY NONAVINAKERE                        815
    POLICE v. SHIVANNA @ TARKARI SHIVANNA
       4. What we wished to emphasize is that the recording of        A
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          B
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   c
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          D
crime of rape and gang rape all over the country 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
oonmrn~.                                                              E
      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        F
the proposed changes in the Gr.P.C. are justified, it is of the
opinion that the same might prejudice the investigation of the
case by the police. 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                  G
considering the importance of the issue raised.
    7. We, thereafter appointed the learned senior counsel Mr.
Shekhar Naphade and Mr. U.U. Lalit, who appeared and
addressed this Court. Learned senior advocate Mr. Shekhar
Naphade agreed with the suggestions given by this Court that          H
    816          SUPREME COURT REPORTS               [2014] 5 S.C.R.


A 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
B 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
  Addi. Solicitor General Mr. Siddharth Luthra also ably assisted
  us and drew the attention of this Court regarding the
C 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
0
    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 in the
    entire country to follow the direction of this Court which are as
    follows:
E
          (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
F                  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
G                  statement under Section 164 Cr.P.C. should not be
                   disclosed to any person till charge sheeUreport
                   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/
H                  preferably Lady Judicial Magistrate.
    STATE OF KARNATAKA BY NONAVINAKERE                           817
    POLICE v. SHIVANNA@ TARKARI SHIVANNA
      (iii) The Investigating Officer shall record specifically the      A
              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         B
              the victim to the Magistrate, the Investigating Officer
              should record the reasons for the same in the case
              diary and hand over a copy of the same to the
              Magistrate.
                                                                         c
      (v)      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
                                                                         0
               medical examination should be immediately
             . handed over to the Magistrate who records the
               statement of the victim under Section 164 Cr.P.C.
      10. A copy of this order thus be circulated to all the Director
Generals of Police of all the States/Commissioner of Police in           E
Metropolitan cities I 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 for its compliance in cases which are registered on
or after the receipt of a copy of these directions. Necessary            F
instructions by the DGPs/ Commissioners of Police be also
issued to all the police station incharge by the DGPs/
Commissioner of Police incorporating the directions issued by
us and recorded hereinbefore.
     11. The matter be posted again after four weeks to ensure           G
compliance of this order by the DGS & Commissioners of
Police in the country before the appropriate Bench and also for
such other further order or orders which may be considered
necessary.
Bibhuti Bhushan Bose                                 Matter adjourned.   H