Assault is the fourth most ordinary bad behaviour against women in India. As shown by the National Crime Records Bureau 77 assault cases were accounted for across India on a normal consistently in 2020, totalling 28,046 such episodes during the year. In general, 3,71,503 instances of wrongdoing against ladies were accounted for in the nation over last year, showing the decay of 8.3 per cent as 4,05,326 cases were enrolled in 2019, experiences conveyed by the country’s National Crime Records Bureau (NCRB) have been uncovered[1]. The paper presents a middle defence regarding the power of the Magistrate to record the attestation of the prosecutrix. Under Section 164 Cr. P.C, the Magistrate is constrained by a respectable feeling after the Criminal Amendment Act of 2013, to record the attestation regardless, when the prosecutrix approaches the Magistrate without being recommended or moved by the Investigation Officer. The Magistrate isn’t to rehearse his propriety, as surrendered to him under the general game plan of Section 164(5)[2] yet is under a legitimate obligation to record her attestation. In Dinesh v. State of Rajasthan, an eight years of age young lady was physically violated by the appealing party is the thing was claimed and that the litigant was viewed as liable. Further, Justice Arijit Pasayat in the judgment has referenced that- While a killer annihilates the actual edge of the person in question, an attacker debases and pollutes the spirit of a vulnerable female.” Under Article 142 of the Constitution of India in the form of Mandamus to all the police base camp in charge in the entire country concerning ‘recording decree of Rape Victim’, making it required for the official to record the attestation of the prosecutrix.

The Section 164 of CrPC Implies

  1. Perpetual inventory of information interfacing with the commission of the offence of attack, the Investigating Officer will take speedy steps to take the casualty to any Metropolitan/preferably Judicial Magistrate to record her statement under S. 164(5) of Code of Criminal Procedure 1973.
  2. The Investigating Officer will pass what many would think about conceivable take the loss to the nearest Lady Metropolitan/in a perfect Lady Judicial Magistrate.
  3. The Investigating Officer will record expressly the date and the time at which he discovered concerning the commission of the offence of attack and the date and time at which he took the loss to the Metropolitan/preferably Lady Judicial Magistrate as a for the attestation of the prosecutrix.
According to the New Amendment

The Criminal Amendment Act 2013, among its different expansive turns of events, implanted another game part 5A (a) into Section 164 of the CrPC[4], making it compulsory that when an offence of attack is executed and the comparable is welcomed to the data on the cop, he will without a doubt take the loss to the nearest Judicial Magistrate for the recording of her attestation.

For what reason is the Magistrate made compelled by a solemn obligation?

A Magistrate is presently made compelled by a sense of honour under Section 164(5A) (a) of CrPC to record articulation. Under, Section 145 of the Evidence Act[5] doesn’t perceive the attestation under Section 162[6] and clarification under Section 164 of the Code[7], and no additional weight-age is given to the affirmations recorded under Section 164 of the Code to conflict with a spectator. One of the huge purposes for which declarations are recorded is for legitimate irregularity during cross-examination under Section 145 of the Evidence Act,1872. However, while a declaration recorded under Section 162 of the Code can be used extraordinarily for irregularity during the way, a statement recorded under Section 164(5A) (a) besides being used for irregularity also fills in as critical confirmation and is used for help too and in like manner is of a more vital evidential motivator for the court.

Will the prosecutrix approach justice for the recording of her assertion?

Regardless, the view that all sources can’t advance toward the Magistrate in isolation for recording the declaration, which has held matchless quality for quite a while, is lawfully debilitated in assemblages of proof concerning bad behaviour against women. The modified Section 165(5A)(a) of the CrPC projects a commitment on the Magistrate to record the affirmation of individuals against whom the offence is submitted when the commission of the offence is brought to the warning of the police and this responsibility isn’t subject to the Investigation Officer moving an application with that effect. In such a way, it would be the officeholder of the area Magistrate to be discerning of such conditions and pass the significant orders to ensure appraisal of the spectator promptly in such cases. Regardless of the way that, there is no prompt decision on this point yet, regardless, on a purposive examining, the new revisions can be scrutinized to have removed an extraordinary case for the norm of sponsorship of onlooker as a pre-fundamental, in cases of women crying of assault, whose declaration can be recorded even without sponsorship by the Investigation Officer. In any case, the Magistrate ought to be unquestionably careful as regards the character of the spectator/complainant before proceeding to record the statement.

Thusly an affirmation under Section 164 may be recorded by a Magistrate at the instance of the police as well as at the event of the accused, or the spectator or the abused person. It isn’t needed at each time that a Magistrate will record the attestation just upon the event of Police or Investigation Officer. An attestation under Section 164 of the Code should be recorded either during an assessment or at whatever point a brief time frame later yet before the inception of the solicitation or starter. By Ram Khelawan Singh versus the State of Bihar[8], it was held that the source’s petition for recording the declaration ought to be allowed in any event, for a circumstance where the assessment is going on. Further by Patiram v. the State of Maharashtra[9], it was observed that – “Officer recording declaration of the spectator who was not upheld by investigating association is permissible in verification”. In cases blamable under region Section 354, Section 354A, Section 354B, Section 354C, area 354D, sub-segment (1) or sub-segment (2) of segment 376, segment 376B, segment 376C, segment 376D, segment 376E, or segment 509 of the Indian Penal Code(45 of 1860), the Magistrate will record the statement of the person against whom such offence has been submitted in the manner suggested in sub-segment (5), u/s 164(5A) (a) CrPC when the commission of the offence is brought to the warning of the police even without the inspecting official moving for it.

Fear regarding the functioning system of police and the requirement for authoritative mediation

It is a lot of settled that in a lawbreaker claim, a commitment is charged upon the re-assessing court to reappraise the real evidence and it can’t keep on disposing of the charm on an assessment of verification by the primer court alone especially when the appeal has been surrendered and set for definitive hearing. Keeping up with such a strategy would amount to the nullification of the significant right of the charm of a charge, which can’t be permitted under guidelines. It is at this stage in attack cases that the attestation of the prosecutrix becomes critical. Thus, the authoritative mediation and reconsideration of the evidence become huge, regardless, when the case is in the redrafting stage. Near norms have been rehashed in Iqbal Abdul Samiya Malek v. the State of Gujarat[10] and Bani Singh vs. State of U. P[11]. On account of Malkhan Singh versus the State of MP[12], it was held that: – “The prosecutrix had all essential inspiration their appearances as they had presented a horrifying offence and embarrassed her. She had, thus, abundant opportunity to see their features. In all honesty, given her awful experience, the substances of the appellants most likely got engraved in her memory, and there was no opportunity of her submitting a mistake about their personality. Additionally, hereafter the clarification of the overcomer of the bad behaviour should be of essential importance and thought for the court.”


The new Criminal Amendment Act makes an expected course of action for recording the attestation of the prosecutrix under Section 164(5A) (a) of CrPC by the Magistrate. Whenever the bad behaviour (as referred to under the sub-segment 5A (a) in Section 164) is welcomed to the data on the police, he is as of now made constrained by a serious commitment to take the setback to the nearest Judicial Magistrate for recording her declaration. The casualty being the source pushes toward the court for recording her declaration being irritated and upset with the demeanour of the investigating officer. Thusly a commitment is cast over the Magistrate to record her declaration.

Author(s) Name: Ritika Kumari (Narvadeshwar Law College, Lucknow)


[1] National Crime Records Bureau<> [Accessed 19 February 2022]

[2] The Code of Criminal Procedure, 1973, Section 164(5)

[3] Dinesh v. the State of Rajasthan, 2006 (3) SCC 771

[4] The Code of Criminal Procedure, 1973, Section 164 (5A) (a)

[5] The Indian Evidence Act, 1872, Section 145

[6] The Code of Criminal Procedure, 1973, Section 162

[7] The Code of Criminal Procedure, 1973, Section 164

[8] Ram Khelawan Singh vs The State of Bihar & Ors., (2017) (2) PLJR 269

[9] Patiram vs The State of Maharashtra, (2003) CriLJ 4718

[10] Iqbal Abdul Samiya Malek vs State of Gujarat, (2012) 1 SCC 62111

[11] Bani Singh & Ors vs State Of U.P, (1996) SCC (4) 720

[12] Malkhan Singh vs State of M.P., (2002) 5 SCC 746