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Home Ministry’s New Advisory Says Dying Declaration Can't be Discarded Even if Magistrate Not Present

Post-Hathras, the Centre’s advisory to states/UTs says said probe into rape cases must be completed within two months as per law.
Home Ministry

New Delhi: The Centre has issued a fresh advisory to states and Union Territories (UTs) on mandatory action in cases of crimes against women, and said probe into rape cases must be completed within two months as per law and that dying declaration of a victim can't be discarded merely because it has not been recorded by a magistrate.

The detailed three-page advisory of the Union Home Ministry came days after the alleged gang-rape and murder of a woman at Hathras in Uttar Pradesh sparked nationwide outrage.

The Home Ministry said there should be compulsory registration of an FIR in case of a cognisable offence under the CrPC, and any failure of police to adhere to laid down rules does not augur well for the delivery of justice.

The law also enables the police to register an FIR or a "Zero FIR", in case the crime is committed outside the jurisdiction of police station, in the event of receipt of information on commission of a cognisable offence, which includes cases of sexual assault on women, the ministry said.

"However, even with stringent provisions in law and several capacity building measures undertaken, any failure of police to adhere to these mandatory requirements may not augur well for the delivery of criminal justice in the country, especially in the context of women safety," it said.

"Such lapses, if noticed, need to be investigated into and stringent action taken immediately against the concerned officers responsible for the same," the advisory to states and Union Territory administrations said.

The Home Ministry told the states and UT administrations that the Section 173 of CrPC provides for completion of police investigation in relation to rape in two months and Section 164-A of CrPC provides that in rape or sexual assault investigation, the victim should be examined by a registered medical practitioner under consent within twenty-four hours from the time of receiving the information relating to the commission of such offence.

The advisory said the Indian Evidence Act, 1872, provides that the statement, written or verbal by a person, who is dead, shall be treated as relevant fact in the investigation when the statement is made by a person as to the cause of his (or her) death or as to any of the circumstances of the transaction which resulted in his (or her) death.

"Hon'ble Supreme Court in its order dated 7th January 2020.....directed that a particular statement, when being offered as dying declaration and satisfies all the requirements of judicial scrutiny, cannot be discarded merely because it has not been recorded by a Magistrate or that the police officer did not obtain attestation by any person present at the time of making of the statement,” it said.

It is necessary to use the Sexual Assault Evidence Collection (SAEC) kits in every case of sexual assault reported for which the home ministry has been regularly conducting training and Training of Trainers (TOT) programmes on procedure for collection, preservation and handling of forensic evidence for police and prosecutors and medical officers respectively.

In order to facilitate the state police to monitor compliance, the home ministry said, an online portal called Investigation Tracking System for Sexual Offences (ITSSO) for monitoring the same has been available exclusively to law enforcement officers.

The states and UTs were advised to use the national database on sexual offenders for identifying and tracking repeat sexual offenders etc.

The Home Ministry also mentioned about the previous advisories sent by it on the issue of crimes against women and pro-active police action on May 16, 2019, December 5, 2019, Standard Operating Procedure (SOP) for Investigation and Prosecution of Rape against Women issued by BPR&D and distribution of SAEC kits.

"The Government of India has taken steps to strengthen legislative provisions to deal with incidents of sexual offences against women and girls," it said.

"It is requested that States and UTs, may suitably issue instructions to all concerned to ensure strict compliance with the provisions in the law...It is also requested to monitor the cases on ITSSO to ensure that suitable follow up action is taken for the charge-sheet of the guilty in a timely manner as required in the law,” the advisory said.

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