About the Kajal and others vs State of Uttar Pradesh 2024
The Allahabad High Court addressed the legal and procedural aspects associated with the recording of statements of witnesses under Section 183 BNSS, 2023. The Court disposed of the petition filed by applicants Kajal and Sunil Kumar in application U/s 528 BNSS No. – 21/2024 against the State of Uttar Pradesh. The applicants had sought directions for recording the statement of Kajal (Applicant 1) under Section 183 BNSS and for her medical examination.
Background: Kajal and others vs State of Uttar Pradesh
- The case stems from a complaint filed by Kajal’s father alleging that Sunil Kumar (Applicant 2) and his parents had kidnapped Kajal on August 20, 2024. Following the FIR, Kajal and Sunil Kumar, who are now married and living together, sought judicial intervention to record Kajal’s statement under Section 183 of the BNSS and to conduct her medical examination. The applicant’s counsel argued that despite her willingness to cooperate, the authorities did not take her statement nor conduct her medical examination.
- The opposite party, represented by learned AGA, Shri Vinay Kumar Sahi, opposed the application, arguing that the investigation was ongoing and the chargesheet was yet to be filed. The State further argued that Kajal was not traceable, and hence her statement and medical examination could not be conducted.
Legal Issues
Recording of witness statement under Section 183 BNSS:
- The applicants sought a direction from the court to compel the investigating officer (IO) to record Kajal’s statement under Section 183 of the BNSS. The main legal issue was whether the court could direct the investigating officer to record the statement of the witness.
Medical examination of the prosecutrix:
The applicants also sought a direction for Kajal to undergo a medical examination to verify that she was not under duress and was voluntarily living with her husband Sunil Kumar.
Maintainability of the application:
The state raised a preliminary objection about the maintainability of the application, arguing that the investigation was still on, and no chargesheet had been filed. Therefore, it questioned the timing and basis of the petition.
Judgment
- The High Court ruled that the application was premature. Justice Saurabh Lavania emphasized that the power to decide when and whose statements should be recorded under Section 183 BNSS rests with the investigating officer and the court cannot compel the investigating officer to record the statement of any witness. The court said, “It is the prerogative of the investigating agency to sponsor the witness whose statement it wishes to record under Section 183 BNSS.”
- With regard to the medical examination, the court said it cannot proceed further as Kajal had not made herself available before the authorities. The court directed Kajal to appear before the investigating officer for medical examination and recording of statement. The court ensured that decency and fairness will be maintained during the entire process, stressing that Kajal will not be harassed or intimidated. A woman constable was directed to accompany Kajal during the procedures and the SSP of Sitapur was tasked to ensure her safety.
- The court also mentioned that Kajal’s custody will be decided by the competent court after her statement is recorded and she is produced before the magistrate. Further, her parents and family members were expressly restrained from harassing or coercing her during the process.