Law Commission of India has doubted the efficacy of the Supreme Court's suggestion that a magistrate record a rape survivor's statement instead of police and said it would not only hamper investigation but also negate fair trial to the accused.
A bench headed by Justice Gyan Sudha Misra had last year taken suo motu cognizance of inordinate delay in the trial of rape cases and said setting up of fast-track courts would not achieve the desired result as long as trial procedures were not changed to dispense speedy justice.
The bench had also asked the government why the Criminal Procedure Code be not drastically amended to allow a magistrate to straight away record statements of all witnesses in sexual assault cases and keep them in sealed cover. "Thereafter, the same be treated as evidence at the stage of trial which may be put to test by subjecting it to cross-examination," it had said.
The Law Commission headed by Justice A P Shah lauded the apex court's keenness to fast track trial in rape cases and minimizing harassment caused to rape victims due to repeated recording of statements during investigation and trial.
But it said, "The amendments sought to be proposed by the Supreme Court may lead to certain difficulties and may not achieve the desired results." The commission said recording of statement by police opens up various possibilities to obtain information about the accused during investigation.
It also clarified that recording a rape survivor and other witnesses' statements by a magistrate under Section 164 of Criminal Procedure Code in no way improved its evidentiary value in comparison to statements recorded by police under Section 161 of the code.
The commission pointed out four pitfalls in substituting the rape survivor's statement to police with that recorded by the magistrate:
* The police will not be able to make any investigation with regard to crucial aspects like details of the accused, what forensic evidence to look for as the statement would be kept in sealed cover
* Police will find it difficult to investigate the case without regularly speaking to the rape survivor to elicit the complete version
* Every discovery of new evidence during investigation would require the police to take the rape survivor to the magistrate for fresh recording of statement, which would actually delay the process
* Police not speaking to the survivor regularly would actually slow down investigation into various possibilities.
The commission also focused on fair trial, a right guaranteed to an accused. "The basic tenets of criminal trial requires that all evidence taken in the course of trial should be taken in the presence of the accused. This is to ensure fairness of trial and to permit the accused or his advocate to point out the demeanor of the witness to the court," it said.
The commission also said police records a rape survivor's statement after questioning her for hours to ensure that all details of the incident are on record. A magistrate was not equipped with the abilities of an investigating officer to achieve the same result while recording her statement, it said.
"If the rape survivor's statement is recorded by the magistrate and kept in sealed cover and not given to the accused before framing of charges, and the accused is made to advance arguments on charge, it would drastically reduce his chances of being discharged, even if genuine circumstances arise in his favour," it said.
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