Statement Under Section 164 CrPC Not a Precondition for Validity of Investigation if Victim Fails to Appear: Uttarakhand High Court

“Despite service of notice under Section 160 CrPC, the prosecutrix failed to appear for her statement under Section 164; investigation cannot be vitiated for her non-cooperation” — Uttarakhand High Court clarified a critical procedural aspect in criminal jurisprudence—whether non-recording of a prosecutrix’s statement under Section 164 of the Code of Criminal Procedure (CrPC) vitiates the entire investigation. Justice Rakesh Thapliyal, while hearing a Section 482 CrPC petition, held that where the victim fails to appear despite service of notice under Section 160 CrPC, the absence of her Section 164 statement is not fatal to the investigation or the resultant final report.

The observation assumes legal significance given the common invocation of Section 164 CrPC in sexual assault cases. The Court’s findings set clear boundaries on the rights of the victim and duties of the prosecution.

“Section 164 CrPC Statement Cannot Be Forced — Victim’s Silence After Due Notice Does Not Invalidate Final Report”

In the ongoing litigation involving allegations under Sections 376, 328, and 506 of the Indian Penal Code, the prosecutrix challenged the rejection of her protest petition against a final report absolving the accused. One of the grounds raised was that her statement under Section 164 CrPC was never recorded, allegedly undermining the investigation's integrity.

Justice Thapliyal, however, dissected the procedural history in detail and found that the prosecution had issued two notices to the prosecutrix under Section 160 CrPC — dated 17.07.2013 and 11.09.2013 — summoning her for recording her statement. Despite being aware and even appearing before the Court during earlier proceedings under Writ Petition (Criminal) No. 1047 of 2013, the victim failed to cooperate and did not insist upon recording her statement.

The Court noted: “Despite the notice issued under Section 160 Cr.P.C. the prosecutrix never turned up for recording her statement under Section 164 Cr.P.C. Though on some of the dates she was present in the Court, she never came forward with a request to record her statement.”

The Court also pointed out that when her writ petition was disposed of on March 19, 2014, the only submission made on her behalf was to challenge the final report by way of a protest petition — no request for recording of a Section 164 statement was made at that stage either.

“Non-Recording of 164 Statement Not Fatal — Victim Cannot Reap Benefit of Own Inaction”

Rejecting the contention that the investigation was vitiated due to absence of the Section 164 statement, the Court emphasized: “Recording of such statement is not so fatal and will not vitiate the investigation in view of Section 460 and 461 Cr.P.C.”

Justice Thapliyal relied on authoritative Supreme Court pronouncements, including Ajai alias Ajju v. State of U.P., 2023 SCC OnLine SC 144, and Vineet Kumar v. State of Uttar Pradesh, (2017) 13 SCC 369, to reinforce the legal position.

Quoting from Ajai alias Ajju, the Court observed: “Non-examination of the statement under section 164 CrPC also has no relevance or bearing to the findings and conclusions arrived at by the courts below… If the Investigating Officer did not think it necessary in his wisdom, it cannot have any bearing on the testimony of PW-1 and the other material evidence led during trial.”

In Vineet Kumar, the Supreme Court had quashed a chargesheet despite the presence of a Section 164 CrPC statement because the rest of the material was found unreliable, thus confirming that such a statement is not conclusive nor indispensable.

“Prosecutrix Had Every Opportunity — Her Silence Cannot Be Used to Undermine Investigation After the Fact”

In a strong message against tactical litigative conduct, the High Court noted that the prosecutrix had multiple opportunities during the pendency of WPCRL No. 1047 of 2013 to demand recording of her statement, but chose not to.

“During the entire proceeding of WPCRL No. 1047 of 2013 the victim never came forward with a request to record her statement under Section 164 Cr.P.C… Even while disposing of the writ petition, no such suggestion or request was made.”

Justice Thapliyal thus clarified that judicial scrutiny cannot accommodate arguments rooted in procedural default on the part of the complainant herself.

“Investigation Must Continue on the Basis of Material Collected — Section 164 Statement Not a Prerequisite to Final Report”

Summing up the position, the Court made it clear that: “It was for the Investigating Officer to have got the statement under section 164 CrPC recorded. If he did not think it necessary in his wisdom, it cannot have any bearing on the testimony of the injured witness and other material evidence.”

In other words, the failure of the prosecution to record a Section 164 statement—where the victim is uncooperative—does not render the final report illegal or incompetent, and such a ground cannot be resurrected later to challenge closure of investigation.

Statement Under Section 164 CrPC is Important but Not Mandatory — Victim's Inaction Cannot Frustrate Legal Process

In this landmark ruling, the Uttarakhand High Court reaffirms the principle that the statement under Section 164 CrPC, though evidentially valuable, is not a sine qua non for the validity of investigation. The Court draws a line between procedural fairness and litigative manipulation, holding that non-cooperation by the victim cannot later be used to discredit the investigation she failed to participate in.

The matter was not finally adjudicated and was adjourned to 19.11.2025, with directions to summon records relating to the protest petition and the revision proceedings.

Date of Decision: 10 November 2025