Scope And Relevance Of Statements Recorded Under Section 161 Of Criminal Procedure Code (crpc)

KEY TAKEAWAYS

• Section 161 of the Code of Criminal Procedure (CrPC) empowers police officers to conduct the investigation in order to examine any person who is acquainted with the facts and circumstances of the case.
• Section 161 mandates that any statement made by the person examined shall be reduced to writing by the investigating officer. 
• Under section 161, individuals examined under this are entitled to safeguards, such as the right against self-incrimination (Article 20(3) of the Indian Constitution) and the right to legal representation during questioning.

INTRODUCTION

The police play a crucial role in resolving cases and bringing criminals to justice by examining witnesses as per the Code of Criminal Procedure, 1973 (CrPC). When witnesses are questioned, the police's foremost duty is to gather their statements for further investigation under CrPC. Although the term ‘Statement’ isn’t explicitly defined in the CrPC, according to the ‘FindLaw Legal Dictionary’, it refers to an ‘official’ or ‘formal report’ or ‘declaration’, it can be ‘oral’ or ‘written’ assertion made by a witness. 

At the commencement of the investigation, it is important for the investigating officer to be involved with individuals who possess information regarding the case as mandated under Section 160 of the CrPC.  Section 161 of the CrPC grants the police the power to question witnesses, enabling them to record witness statements as needed. The primary aim of this provision is to collect evidence to be presented in court during the trial and the information gathered assists the courts in formulating charges against the accused. 

According to section 164(1) of CrPC, a judicial magistrate regardless of whether they have jurisdiction over the case, is authorised to record any statement or confession made to them during the investigation. Wherein, section 164(5) empowers a judicial magistrate to record statements that, which is in the magistrate's opinion is most suitable considering the circumstances of the case.  It is noted by CrPC that the statement of witnesses must be accurately recorded, either in the case diary or separately following specific guidelines, and if a witness’s statement hasn’t been recorded the court may still allow it if the police officer hasn’t fulfilled their duties as required by section 173 of CrPC. 

EXAMINATION OF WITNESS BY POLICE – STATEMENTS RECORDED UNDER SECTION 161 OF CrPC

Section 161 of CrPC serves the purpose of gathering evidence that can be presented in the court proceeding. In trials before a court of session or in cases requiring a warrant, charges against the accused can be based on statements recorded by the police under this section. It grants the police the authority to interrogate witnesses during investigations. Under section 161(1), the police can orally question anyone who is believed to know the case and its circumstances. This section applies to those individuals who may potentially be accused or suspected. In the case of “Pakala Narayan Swami V. Emperor (1939)”, it was established that “persons” referred to anyone who might be accused later on. Section 161(2) mandated that individuals questioned by the police must answer truthfully, but they are also protected from ‘self-incrimination’. In the case of “Nandini Satpathy V. P.L. Dani (1978)”, here it was established that individuals accused of crime cannot be compelled to incriminate themselves. Section 161(3) stipulated that witness statements must be recorded face-to-face with the individual and indirectly. Witness are not required to take an oath, and their statements can be captured using digital technology such as videography. Also, statements made by women must be recorded by a ‘female police officer’, in continuation of this, in the case of “Sewaki V. State of Himachal Pradesh (1981)”, it was established that statements recorded under section 161 are not considered substantive evidence because they are not made under oath and are not subject to cross-examination, as required by the ‘Evidence Act, 1872’. Therefore, they do not constitute proof of the facts stated within them according to the rules of evidence.

DELAY IN RECORDING THE STATEMENTS 

Delay in recording the statements of witnesses under CrPC section 161, does not automatically discredit the individual's testimony, especially if their statements are cogent and credible and if the delay is satisfactorily explained to the court’s satisfaction. While its important to acquire witness statements promptly, a delay of a few hours in recording them is not necessarily a significant flaw. However, its crucial to ensure that there is no suspicion of “intentional delay by the police” to allow the accused to fabricate a case. 

Case Laws:- 

1. In the case of “State of NCT Delhi V. Ravikant Sharma (2007)”, the court held that “directions to provide the ‘gist’ of such statements were unsustainable, as these statements recorded during the inquiry did not include the police’s interpretation.
2. Similarly in the case of “Harbeer Singh v. Sheeshpal 2016” the Supreme Court noted that a delay in recording statements of prosecution witnesses, even when they were available for examination at the time of the investigation officer’s visit to the scene, or shortly thereafter raises doubts about the prosecution’s case, but it is has been very well established that not every delay in examining witnesses is fatal, provided the investigation officer satisfactorily explains it to the court.
3. In a very recent case of “Dinesh S. V. State of Karnatka and Anr, 2023”, the Hon’ble High Court of Karnataka held that even if for some reason during the investigation there is a delay in recording the statement of the witness by the investigation officer it cannot be the ground for “grant of bail”.
4. In the case of “Ganesh Bhagvan V. State of Maharashtra 2005”, the court held that delay in recording witness statements does not inherently discredit their testimony. If witnesses were available for examination when the investigation officer visited the scene or soon after, and yet there is a delay it raises doubts about the prosecution case. 

SECTION 162 OF CrPC: STATEMENTS TO POLICE NOT TO BE SIGNED – USE OF STATEMENTS IN EVIDENCE

Each statement captured by a police officer during an investigation isn’t given under oath or subjected to cross-examination. This section outlines rules regarding statements made to police during the investigation. It stipulates that such statements if written down, cannot be signed by the person making them. Additionally, these statements, or any records thereof, cannot be used as evidence in any inquiry or trial for an offence under investigation at the time when the statement was made. Section 162 of CrPC bars the use of statements made to the police during the investigation to corroborate evidence. This safeguard is based on the premise that the police may inaccurately record statements, which could be biased or self–serving. Nonetheless, this doesn’t imply a complete exclusion of such statements. In the case of “Khatri V. State of Bihar 1983”, the court observed that the object of section 162 of CrPC is to protect the accused both against pressure of police and untruthful witnesses. 

SECTION 163 OF CrPC: NO INDUCEMENT TO BE OFFERED

According to section 24 of the Indian Evidence Act, police or any other individuals in positions of authority are prohibited from offering inducement, threats, or promises as outlined in the Evidence Act. However, if a witness voluntarily chooses to give a statement, no police officer can obstruct or prevent them from doing so. 

WHAT IS CONTRADICTION AND HOW RECORDED 

When an individual is a witness and asserts a “fact” before the court that he did not mention that “missing fact: to the police while giving his statement, it creates a conflict between their courtroom testimony and their earlier statement to the police, constituting a “Contradiction”. Wherein the statement provided to the police can be utilizes to challenge their testimony in court. 

In the case of “Appabhai V. State of Gujarat 1988”, the court said that it should not overemphasize minor discrepancies when evaluating evidence that discrepancies that do not undermine the core narrative of the prosecution’s case may be disregarded. 

Now, before using a “part” of the statement for the contradiction, it must first be brought to the attention of the witness, who should be questioned about it. If the witness acknowledged making the statements before the police, no further evidence is required, however, if the witness “denied” making the contradictory statements during the time of its statements, the court is obligated to note these statements and give exhibit number. This process simply records the contradiction but does not “establish proof”, to prove the contradiction, the investigating officer who recorded the statement must be confronted with it, asking whether the witness mentioned the passage in question to them, if the officer confirms this, then the contradiction is considered established. 

EVIDENTIARY VALUE OF CONTRADICTION

To establish a contradiction in court, the cross-examiner is permitted to require about any prior inconsistent statements made by the witness. 

“If the intention is to introduce the statement as evidence during the trial, the witness must first be shown the document containing the statement before being questioned about it.” This legal principle originates from the famous case of “Queen Caroline 1820”, which says that before questioning a witness about their prior written statement, the document must be presented before the. The rule requires the cross-examiner to provide details such as time, place, individual present, and the substance of the impeaching statement before introducing extrinsic evidence to prove its existence. This rule is reflected in Section 145 of the Indian Evidence Act, of 1872, where it is founded on the principle of fairness and is crucial for establishing contradiction regarding any inconsistencies in previous statements. 

In the case of  “State of Rajasthan V Kartar Singh 1970”, the supreme court held that if a witness completely recants from their earlier statement, then reading the entire previous statement to the witness and confronting them with it would comply with Section 145 of the Evidence Act. The court observed that asking the witness to explain each sentence of the previous statement would be futile, as the explanation would likely remain the same, that the statement was false and given under pressure from the police.

EVIDENTIARY VALUE OF 161 – WHEN NOT SIGNED, WHEN SIGNED BY WITNESS

Section 161 of the CrPC, prohibits the practice of obtaining a witness signature on a statement, as highlighted in section 162 of CrPC. Although this prohibition doesn’t automatically render a statement invalid, it can say a lot about the doubt and credibility of the witness’s testimony in court. However, the mere presence of a signature on a statement recorded during an inquiry doesn’t mandate its rejection. Instead, the court must meticulously evaluate the evidence provided by the witness who signed the statement, especially if there are suspicions of forgery. 

In the case of “State of Rajasthan V. Teja Ram and Others (1999)”, the Hon’ble Supreme Court argued that section 162 of the CrPC doesn’t make a witness’s testimony in court “inadmissible” if it comes to light that the witness signed a statement recorded during the investigation at the police’s behest, it acts as a cautionary signal to the court and might prompt a more thorough examination of the circumstances surrounding the statement. 

SECTION 161 OF CrPC STATEMENTS AND SECTION 164 STATEMENT: A COMPARISON BETWEEN THE TWO

Section 161:-

Witness statements collected during an investigation are governed by section 161 of CrPC, which restricts the direct usage of individual statements as evidence but allows for specific uses as delineated in the provision. These statements lack substantive evidence status in court proceedings. Article 20(3) of the Constitution, given section 161(2) of CrPC, safeguards against the forced extraction of oral testimony during investigation. 

Section 164:-

Under 164 of CrPC, statements are formally recorded by a “Magistrate”. Once an individual makes and signs a statement before a magistrate during the investigation, they are bound by it and cannot disown it, any attempt to disown it may lead to a person being labelled as hostile. A statement, if properly recorded and legally valid, constitutes substantive evidence against the witness and can be adequate for convicting the accused. 

In the case of “Deepak Kumar V. State of Bihar 2014”, the Patna High Court held that the importance of allowing the defence the opportunity to cross-examine witnesses whose statements were recorded under sections 161 and 164 of the code was underscored. Failure to provide this opportunity renders such statements ineligible as substantive evidence. Justice Alok Kumar Pandey, while presiding over an appeal in a “POCSO case”, reiterated that statements recorded under Sections 161 and 164 of the code are admissible solely to corroborate and contradict other evidence, as established by numerous judicial precedents. 

LATEST UPDATES; JUDICIAL RULINGS 

1.    In a recent judgement of January 2024, in the case of “Darshan Singh V. State of Punjab”, the Hon’ble Supreme Court held that testimonies witnessed during the trial regarding an accused’s involvement in the incident cannot be trusted if they did not previously mention the same in their statements under section 161 of C.r.P.C. 

The three-judge bench of Justice B.R Gavai, Justice P.S Narasimha and Justice Aravind Kumar noted that 

“if the PWs had failed to mention in their statements u/s 161 CrPC about the involvement of an accused, their subsequent statement before the court during the trial regarding involvement of that particular accused cannot be relied upon. The prosecution cannot seek to prove a fact during trial through a witness which such witness had not stated to police during the investigation. 

The evidence of that witness regarding the said improved  fact is of no significance”.

2.    In a judgement of 2023, in the case of “Birbal Nath V. State of Rajasthan”, The Hon’ble Supreme Court said that highlighting that a statement provided to the police during an investigation under Section 161 CrPC does not hold the status of “Evidence”, the court observed that mere disparities between two statements under Section 161 CrPC and those given during examination-in chief are insufficient to entirely discredit a witness. 

The two-judge bench of Justice Sanjay Kishan Kaul and Justice Sudhanshu Dhulia noted that “No doubt statement given before police during investigation under Section 161 are “previous statements” under Section 145 of the Evidence Act and therefore can be used to cross examine a witness. But this is only for a limited purpose, to “contradict” such a witness”. 

3.    In a recent judgement of 2023, in the case of “Om Prakash @ Jani V. State of Bihar”, the Allahabad High Court observed that the Victims statement under Section 161 of CrPC could be significant enough to warrant a change in charges under jurisdiction outlined in Section 216 of CrPC. The court was adjudicating on an application under section 482 of the CrPC, challenging the Trial Courts order concerning offences under Sections 372 and 373 of the IPC. 

The single-judge bench of Justice Dinesh Pathak distinctively observed that “Statement of victim u/s 161 Cr.P.C., priam facie, is suficient to alter the charges in exercise of jurisdiction u/s 216 Cr.P.C. Trial court by order impugned has simply allowed the application acknowledging the relevant fact for the purposes of framing of charge, however, he has deferred the matter for framing of charge on the next date fixed. Therefore, in may opinion opportunity is still open for the applicant to raise question qua adequate material on record with respect to the framing of additional charge, if any.”

CONCLUSION

In conclusion, the provisions outlined in Sections 161, 162 and 164 of the Code of Criminal Procedure, 1973 (CrPC) play a pivotal role in the investigation and judicial processes of criminal cases in India. Section 161 empowers the police to collect crucial evidence by examining witnesses and recording their statements, while Section 162 and 164 delineate rules regarding the use and admissibility of such statements in court proceedings. 

The examination of witnesses by the police under Section 161 serves as a foundational step in gathering evidence, although statements recorded under this section do not carry the status of substantive evidence and cannot be used directly establish the guilt of the accused. The judicial magistrate’s role in recording statements under Section 164 adds another layer of credibility and legal scrutiny to the evidence-gathering process. 

However, the mere recording of statement does not guarantee their admissibility or reliability in court. Section 162 and 164 provide safeguards against the misuse or misinterpretation of witness statements, emphasizing the importance of fairness and accuracy in the judicial process. The courts have consistently upheld these safeguards to ensure the integrity and fairness of criminal proceedings. 

Recent judgements, such as those in the cases of Darshan Singh V. State of Punjab, Birbal Nath V. State of Rajasthan and Om Prakash @ Jani V. State of Bihar, underscore the ongoing judicial scrutiny and interpretation of these provisions in light of evolving legal principles and societal needs. These rulings reaffirm the court’s commitment to upholding the rights of both the accused and the victims, while also ensuring the effective administration of justice. 

In essence, the effective implementation and interpretation of Sections 161, 162,and 164 of the CrPC are essential for maintaining the balance between the investigative powers of law enforcement and the protection of individual rights within India’s criminal justice system.