Rajasthan high court ordered the judicial magistrate to immediately proceed to record the statement of the prosecutor in accordance with section 26 of the POSCO act. According to the section, the magistrate has been conferred with the power to record the statement of the victim in presence of the witnesses which may be parents of the child or any other or confidant.
A single bench of justice Sanjeev Prakash Sharma ordered the magistrate to allow the application to be accepted and thus re-record the statement of the minor victim. It was also decided that any future case relating to the act shall be dealt with following the provisions under Section 26 of the POCSO Act while recording the statements under Section 164 CrPC at the first instance. The facts of the case were that the victim, two girls, were abducted and raped in the Baran district of Rajasthan. As per the reports of the news channel India today they were kidnapped by the accused and taken to a nearby district of Rajasthan on the night of 18 September. The father of the minor girls told the police that they were raped and tortured by the accused for three nights continuously. Further, the family of the victim also received various threats from the accused and his group and said that if they filed a complaint in the police station then they would kill their daughters. However, a completely contrary statement was presented by the police according to the statement given by the girls that they went away with the two boys on their own and consented to it. Further, as per the medical examination conducted there was no evidence of rape found on their bodies.
The High Court referred to Jogendra Nahak & Ors. v. State of Orissa & Ors., (2000) 1 SCC 272, and ruled "it is the exclusive domain of the IO alone to move an application for getting statement recorded of any witness u/s 164 Cr.P.C. On moving such an application, the Magistrate will have to get the statement recorded". A precedent of Lada Devi v. the State of Rajasthan was also cited.