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Report No. 178

16. Problem of hostile witnesses and the need to ensure a fair investigation.-

Certain recent happenings, widely reported in the Press, call for introducing measures to ensure that a criminal trial does not end in a fiasco on account of the eye-witnesses or the material witnesses, as the case may be, turning hostile at the trial. At the same time, it is equally imperative that a fair investigation is assured and room for manipulation at the stage of investigation should be eliminated as far as possible.

The experience shows that where the accused happens to be rich and/or influential persons or members of mafia gangs, the witnesses very often turn hostile either because of the inducements offered to them or because of the threats given to them or may be on account of promises that may be made to them. To protect public interest and to safeguard the interests of society, measures need to be devised to eliminate, as far as possible, scope for such happenings.

The 14th Law Commission had referred to this aspect while submitting its report (154th Report) on the Code of Criminal Procedure. After considering the earlier reports of the Commission, the reports of the National Police Commission and the responses it received pursuant to the circulation of its Working Paper, the Commission suggested the following measures:

(a) "It is necessary to amend section 164 CrPC so as to make it mandatory for the investigating officer to get statements of all material witnesses questioned by him during the course of 117 investigation recorded on oath by the magistrate. The statement thus recorded will be of much evidentiary value and can be used as previous statement. Such recording will prevent the witnesses turning hostile at their free will.

Such a change will also help the Police to complete the investigation and submit a final report on the basis of such statements made on oath and on other facts and circumstances stated as recovery, etc." Accordingly, the Commission suggested introduction of sub-section (1A) in section 164. The Commission however felt that adoption of this course would require recruitment of a good number of additional magistrates, which course, it thought may not be immediately feasibl.- though this course was the most desirable one.

(b) The other alternative measure suggested by the 14th Law Commission was to retain the existing provisions in sections 161, 162 and 172 of the Code of Criminal Procedure and to provide some checks against the witnesses turning hostile. The suggested measures were: taking the signature of the witness, if he is literate, on his statement, giving a copy of the statement to the deponent under acknowledgement and thirdly to send copies of the statements to the appropriate magistrate as well as to the superior Police officers.

We appreciate the difficulty pointed out by the 14th Law Commission in recruiting as many more magistrates as may be required, if the first measure suggested by it were to be introduced. We therefore thought of a 118 third alternative. Inasmuch as the evil of witnesses turning hostile is more in vogue in serious offences and because this evil must first be checked in serious offences and also because such a measure is being introduced for the first time now after a long number of years, we suggest the following alternative:

In all offences punishable with ten or more years imprisonment (with or without fine) including offences for which death sentence can be awarded, the Police shall have the statements of all important witnesses recorded under section 164 by a magistrate. Indeed, it would be more appropriate, if this is done at the earliest opportunity i.e. at the very inception of the investigation.

It is well-known that generally witnesses stick to truth at the early stages but may change in course of time. If their statement is got recorded by a magistrate at the earliest opportunity, that will also furnish guarantee of the truth of the statement as well. This is the general belief, though this cannot be stated as a definite or universal proposition. Adopting this course would not require recruitment of a large number of additional magistrates. The present number would suffice.

We must, however, hasten to add that the above measure by itself would not suffice. Whether the statement is recorded before the magistrate under section 164 (or whether the signature of the witness is taken on his statement recorded under section 161 as suggested in the 154th Report), they remain merely former statements of witnesses. So far as statements recorded under section 161 are concerned, the restrictions placed thereon by section 162 would also operate.

So far as the statements recorded under section 164 are concerned, they would be no more than former statements of 119 witnesses which can be used either for corroboration or contradiction. Obviously, there can be no question of cross-examination of these witnesses at the stage of investigation or at the stage of recording their statements under section 164.

It is therefore necessary to provide a further measure, namely, that if a witness whose statement is recorded by a magistrate under section 164 CrPC departs from that statement at the trial, it should be open to the trial judge (sessions judge) to treat his statement recorded under section 164 as relevant evidence at the trial, subject to the provisions of the Evidence Act.

It is obvious that the trial judge would do so only when he is satisfied, in the facts and circumstances of the case, that the statement of the witness before the magistrate recorded under section 164 CrPC was true and that his statement at the trial does not represent the truth. Of course, he should also be satisfied that the statement under section 164 was made voluntarily. We may in this connection recall the provision contained in section 288 of the Criminal Procedure Code, 1898, which does not find a place in the present Code.

Under the old Code, all important witnesses were examined (giving an opportunity to the accused to cross-examine them) in the committal court and in case these witnesses turned hostile at the trial before the sessions court, section 288 enabled the trial judge to treat the evidence of the witness given in the committal court as substantive evidence at the trial subject of course to the provisions of the Indian Evidence Act, 1872.

We are aware that the measure suggested by us is rather radical, inasmuch as a statement, untested by cross-examination, is sought to be 120 made admissible as evidence for all purpose.- even in a case of murder. But the justification behind this measure is (a) 'necessity'- a doctrine which is well-accepted in jurisprudence, examples of which are the several instances mentioned in clauses (1) to (8) of section 32 of Evidence Act;

(b) the safeguards mentioned hereinabove viz., recording of the statement by a magistrate which itself is a guarantee, to a large extent, that the statement was voluntary and hence true and the further provision that the trial judge will treat such statement (u/s 164) as evidence at the trial only if and when he is satisfied in all the circumstances of the case that the statement recorded u/s 164 was voluntary and appears to be true.

So far as offences punishable with less than ten years imprisonment (with or without fine) are concerned, the existing procedure may be followed subject to the following modifications: the statement of a witness under section 161 of the Code shall be recorded as far as possible in the language in which the witness deposes; after the statement is recorded, it shall be read over to the witness by the officer recording it and the signature or thumb impression, as the case may be, of the witness shall be obtained on the statement;
the statements shall be recorded in the Case Diary and not upon loose sheets of paper; copies of statements recorded under sub-section (3), shall be sent immediately to the Magistrate competent to take cognizance of the offence and to the Superintendent of Police of the District; the Case Diary shall be a bound book, duly paginated and maintained in the regular course of official business.

If this measure is adopted, it will not only ensure that the investigation is fair, it would also eliminate room for any 121 manipulation by the investigating officers which is the common complaint of the accused. Frequently allegations are made that the scene of offence is changed, the time of offence is altered, the witnesses are shuffled or substituted, the names, numbers and identities of the accused are changed and so on.

The adoption of the above course would help eliminate room for such complaints and would not only assure to the accused a fair investigation but would also lend credibility to the investigation process and would indeed increase the present poor rate of conviction. The measures suggested herein should indeed be followed in all cases (i.e., even in case of offences punishable with ten years or more imprisonment), which would go a long way in improving the quality of this phase of criminal legal system.

We are also of the opinion that for a proper and effective implementation of the above measures, the prosecution should seek to concentrate their attention on important cases instead of frittering their energies on all and sundry cases. The recommendation made by the 14th Law Commission in their 154th Report regarding introduction of the procedure of 'plea bargaining' and increasing the number of offences which can be compounded, should be implemented without any further delay.

In chapter 13 of the 154th Report, the Law Commission had recommended that the facility of plea bargain should be made applicable, to start with, to offences which are punishable with imprisonment for less than seven years and/or fine including the offences covered by section 320 of the Code. It was clarified that plea bargaining can also be in respect of nature and gravity of offences as well as to the quantum of punishment.

It was also suggested 122 that the process of plea bargaining shall be set in motion after issue of process and when the accused appears, either on a written application by the accused to the court or suo motu by the court. Indeed, the said chapter sets out in detail the procedure to be followed in this behalf which we do not think it necessary to reproduce here. Similarly, chapter 12 of the said Report recommends increasing the number of offences which can be compounded without the permission of the court and also those offences which can be compounded with the permission of the court.

If the concept of plea bargaining is so implemented in respect of offences punishable up to seven years imprisonment (with or without fine), a large number of less serious offences can be settled without the requirement of a trial.

Accordingly, we recommend the following amendments to the Code of Criminal Procedure:

(a) Insertion of sub-section (1A) in section 164 CrPC:

"164A Evidence of material witnesses to be recorded by Magistrate in certain case.- (1) Any police officer making an investigation into any offence punishable with imprisonment for ten years or more (with or without fine) including an offence which is punishable with death, 123 shall in the course of such investigation, forward all persons whose evidence is essential for the just decision of the case, to the nearest Magistrate for recording their statements.

(2) The Magistrate shall record the statements of such persons forwarded to him under sub-section (1) on oath and shall keep such statements with him awaiting further police report under section 173.

(3) Copies of such statements shall be furnished to the investigating officer.

(4) If the Magistrate recording the statement is not empowered to take cognizance of such offence, he shall send the statements so recorded to the magistrate empowered to take cognizance of the case.

(5) The statement of any person duly recorded as a witness under subsection (1) may, if such witness is produced and examined, in the discretion of the court and subject to the provisions of the Indian Evidence Act, 1872, be treated as evidence."

(b) Insertion of section 311A:

"Section 311A: The statement of the witness duly recorded under subsection (1) of section 164 of this Code may, in the discretion of the presiding judge, if such witness is produced and examined, be treated as evidence in the case for all purposes subject to the provisions of the Indian Evidence Act, 1872."

Implementation of the recommendations of the 154th Report of the Law Commission with respect of introduction of plea bargaining and 124 enlargement of compoundability of the offences, may also be taken up immediately.

There is another very important measure, which too was recommended in the 154th Report of this Commission, which needs to be implemented without further delay. It relates to establishment of a separate investigating agency and an independent prosecuting agency set out in chapters 2 and 3 of the said Report. Since the reasons in support of the said recommendations are duly stated in the said Report, we do not think it necessary to repeat them here. Suffice it to say that we endorse and commend the said recommendations which would go a long way in ensuring fair and prompt investigation and would also contribute to the increase in the rate of conviction which is appallingly low at present.

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