Report No. 172
4.2. Addition of sub-sections (3) to (5) in section 160, CrPC.-
The 84th Report of the Law Commission had recommended (paragraphs 3.1 to 3.15) that sub-sections (3) to (7) be added in section 160. Instead of paraphrasing the reasons given in the 84th Report in our own words, it would be appropriate to set out paragraphs 3.11 to 3.15 of that Report hereinbelow:
"IV. Interrogation of female victims of sexual offences
3.11 Reporting and Investigation.- These matters concern the arrest and detention of women in general. We now deal with certain matters peculiar to women who are victims of sexual offences. Women who have been raped are reluctant to report it, partly because of the embarrassment of discussing the details with male policemen, and partly because of the very fear of even more painful humiliation of being a witness in Court. They get scared and become confused when, in the strange environment of the Court room, they have to conduct themselves in a manner foreign to their custom and under a restraint not conducive to clear and coherent thought or free expression.
3.12 Investigation by female police - No statutory change recommended.- A woman is often discouraged from pressing a charge of rape or other sexual offence by the fact that she usually encounters only male police and prosecution officers. It is presumably for this reason that it has been suggested that the investigation of such offences should be done by women police officers only.
We would be happy if the questioning of female victims of sexual offences would be done by women police officers only. We are not, however, inclined to recommend a statutory provision in this regard. A mandatory provision to that effect may prove to be unworkable. The number of women police officers in rural areas is very small. Even in urban areas, unless a centralised cell (with the status of a police station) is created for investigation into sexual offences against women, such a provision may not be practicable. We regard this difficulty as a transient one. An all-out effort for the recruitment of sufficient number of women police officers, who could be drafted for the police duties of interrogation and investigation, should be made.
3.13 Practice to be adopted in metropolitan cities.- Till then, in metropolitan cities or big cities where there are sufficient number of women police offficers, a practice should be established that women police officers alone investigate sexual offences and interrogate the victim. We are, therefore, not in favour of any statutory provision being made in this respect, subject to what we are recommending in the next paragraph.
3.14 Interrogation of child victim of rape Statutory provision recommended.- The practice as suggested above could be adopted in metropolitcan areas and big cities. But there is one matter which is of importance for the whole country. It is necessary that in the case of girls below a certain age - say, below twelve years who are victims of rape, there should be a statutory provision to ensure that the girl must be interrogated only by a woman. A woman police officer would be preferable. But, if a woman police officer is not available, an alternate procedure as detailed below should be followed.
The alternate procedure that we contemplate is this. Where a woman police officer is not available, the officer in charge of the police station should forward a list of questions to a qualified female (we shall suggest details later) who would, after recording the information as ascertained from the child victim, return the papers to the officer in charge of the police station. If necessary, further questions to be put to the child may be sent by the police to the interrogator. For the present, this procedure may be applied to female victims below 12 years. It could later be utilised for child witnesses in general, if found practicable.
The "qualified female" whom we have in mind should be one who is a social worker belonging to a recognised social organisation. If she possesses some knowledge of law and procedure, it would be all the more useful, but that need not be a statutory requirement.
3.15 Amendment of section 160 recommended by insertion of sub-sections (3) to (7).- In view of what is stated above, we would recommend the addition of the following provision - say, as new sub-sections - in section 160 of the Code of Criminal Procedure, 1973:
"(3) Where, under this chapter, the statement of a girl under the age of twelve years is to be recorded, either as first information of an offence or in the course of an investigation into an offence, and the girl is a person against whom an offence under section 354, 354A or 375 of the Indian Penal Code is alleged to have been committed or attempted, the statement shall be recorded either by a female police officer or by a person authorised by such organisation interested in the welfare of women or children as is recognised in this behalf by the State Government by notification in the official gazette.
(4) Where the case is one to which the provisions of sub-section (3) apply, and a female police officer is not available, the officer in charge of the police station shall, in order to facilitate the recording of the statement, forward to the person referred to in that sub-section a written request setting out the points on which information is required to be elicited from the girl.
(5) The person to whom such a written request is forwarded shall, after recording the statement of the girl, transmit the record to the officer in charge of the police station.
(6) where the statement recorded by such person as forwarded under sub-section (5) appears in any respect to require clarification or amplification, the officer in charge of the police station shall return the papers to the person by whom it was forwarded, with a request for clarification or amplification on specified matters; and such person shall thereupon record the further statement of the girl in conformity with the request and return the papers to the officer in charge of the police station.
(7) The statement of the girl recorded and forwarded under sub-sections
(3) to (6) shall, for the purpose of the law relating to the admissibility in evidence of statements made by any person, be deemed to be a statement recorded by a police officer."
4.2.1. The representatives of Sakshi supported the said recommendation and wanted us to reiterate the same.
4.2.2. The 154th Report of the Law Commission dealt with the above recommendation in paragraphs 6.5 to 6.9. After setting out the aforesaid sub-sections in para 6.5, the 154th Report makes the following comments and recommendation in paragraphs 6.6 to 6.9 of chapter XVIII:
"6.6 The origin of this suggestion in its embryonic form can be traced to the Law Commission's Reports on "Rape and Allied Offences" and "Women in Custody".
6.7 The Bill (NCW) has gone beyond the Law Commission's earlier recommendations in that, insisting on the presence of a female police officer. Though the presence of such female officer is useful and necessary, their absence should not lead to delay in the investigation of the offences. Sub-sections (4), (5), (6) and (7) referred to above obligates the officer incharge of the police station to forward the person to a representative of a government, recognised women's organisation and the statement recorded by such person shall be deemed to be a statement recorded by the police officer.
6.8 It may be pointed out that the 1994 Bill does not incorporate the above amendment.
6.9 We are of the opinion that section 160 be amended on the lines suggested above subject to certain modifications. The recommendation made in sub-section (4) of NCW Bill is not practicable having regard to the present condition and dearth of female police officers. It may also not be practicable for the victim or any person interested in her to approach the person mentioned in sub-section (3).
Instead, we suggest that sub-section (4) may be amended to the effect that where a female police officer is not available and to contact the person mentioned in sub-section (3) is difficult, the officer in charge of the police station, for reasons to be recorded in writing, shall proceed with the recording of the statement of the victim in the presence of a relative of the victim. Further, the age of "twelve years" be raised to "eighteen years" in conformity with the Convention on the Rights of the Child."