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Report No. 154

Chapter IX

Examination of Witnesses and Record of Their Statements: Sections 161 and 162

1. These two sections dealing with oral examination of witnesses by the Police, the record to be made of their statements and the use to which it may put subsequently have been the subject matter of many court decisions, discussions and consideration by various Commissions including the National Police Commission and they have attracted a variety of comments and suggestions. The Fourteenth Report1 of the Law Commission is the earliest one to consider the issues involved.

The Commission expressed the view that the discretion allowed to a Police Officer to record or not to record the statement of witnesses orally examined by him is in such restricted terms that the whole purpose of section 173 would be defeated by a negligent or dishonest Police Officer and, the Commission, therefore, recommended that the Police Officer should be obliged by law to reduce in writing to record the statement of every witness against whom the prosecution proposed to examine at the trial. This view was accepted; in the Thirty Seventh Report of the Law Commission2.

But the recommendation went further to suggest that statement of every witness questioned by the' police under section 161 must be recorded thereby suggesting that the recording of statement of witnesses should not be limited only to those proposed to be examined at the trial. The Law Commission again in its Forty First Report3 considered these recommendations and suggested that there is no need to place any fatter on the discretion of the Police Officer at the stage of investigation and better to leave it to him to record only what in his judgment is worth recording and leave the rest to the departmental instructions and supervision.

1. Fourteenth Report of the Law Commission, (1958).

2. Thirty-seventh Report of the Law Commission, paras. 437-440, (1967).

3. Forty-first Report of the Law Commission, para. 14.9, (1969).

2. Section 162(1) lays down firstly, the prohibition that no statement made by any person to a Police Officer in the course of investigation, under this chapter shall, if reduced in writing be signed by the person making it. In the Fourteenth Report, the Law Commission recommended that the literate witnesses Should be required to sign the statements1. In the Thirty Seventh Report2, the Commission, however, did not favour such a change.

But, in the Forty First Report, the Commission, however, recommended that where the person can read the statement so recorded, his signature can be obtained after he has read the statement. The second part of section 162(1) has been found to be controversial. It provides that no statement of witness to the police or any record thereof whether in a police diary or otherwise or any part of such statement or record shall be used for any purpose at an enquiry or trial.

But, when a witness is called for the prosecution, any part of the statement if duly quoted may be used by the accused and with the permission of the Court by the prosecution to contradict such witness in the manner provided by section 145 of the Evidence Act. But, there had been many complaints that the police record of a witness is often inaccurate that a dishonest Police Officer can write anything he likes. The Forty First Report3 of the Law Commission having considered the various views also observed that the statement under section 164 would not be a good substitute for the statement before the police. The Commission ultimately, however, did not recommend any change.

1. Fourteenth Report of the Law Commission, Vol. 2, (1958).

2. Thirty-seventh Report of the Law Commission, para. 437(c), (1967).

3. Forty-first Report of the Law Commission, Vol. I, para. 14-13, (1969).

3. The National Police Commission in its Fourth Report1 considered various views and suggestions and also the voluminous case law built up on these two sections over several years. The Commission noted that under the present provisions of section 162, the Police Officer is precluded from obtaining the signature of a person and the statement recorded from him.

It was represented before the Commission that this provision operates to the greater disadvantage of the Police Officer and induces a general feeling among witnesses that they are not in any way bound by the statement recorded by the police and they could freely deviate at a subsequent stage without attracting any penal notice. The Police Commission also noted that it is imperative that the malpractices should be put down to ensure honesty and integrity of the investigation.

The Commission ultimately suggested that a greater measure of credibility could be imparted to the statement of facts as recorded by the Police Officer if it is provided in law that a copy of the statement so recorded shall, if desired by the witness, be handed over to him under acknowledgment.

Coming to the use of the statements, the Police Commission suggested that there need not be a detailed recording of the statement as made by a witness and the Investigating Officer can make a record of the facts as ascertained by him on examination of witnesses which could be in third person in the language of the Investigating Officer himself and that would be adequate to assist the evidentiary value of different witnesses and accordingly cite them in the charge-sheet on conclusion of investigation.

According to the Police Commission, such a statement of facts as ascertained and recorded by the Investigating Officer could not be treated as an earlier statement made by the witness himself in his own language, and, therefore, the question of using that statement for contradiction or corroboration would not arise. The Police Commission also endorsed the view that no such statement of acts ascertained by a Police Officer from many persons shall, if reduced to writing be signed by the said person.

But, the Commission, however, recommended that a copy of such statement duly authenticated by the Police Officer recording it shall be delivered under acknowledgment to that person on whose examination of such statement was recorded, if so desire by that person. Based on these suggestions the Police Commission also recommended necessary changes in section 172, Cr. P.C. dealing with police diary, namely, that the Investigating Officer shall maintain a police diary in which he enters his proceedings, etc., and the statement of the circumstances ascertained and also attach to the diary for each day, copies of statement of facts ascertained and recorded under amended section 161, Cr. P.C.

1. Fourth Report of the National Police Commission, paras. 27.12-27.19, (1980).

4. However, in the Forty First Report' of the Law Commission, a note of dissent regarding the proposed amendments to sections 161(3) and 162 was made by two Members, Shri R.L. Narasimam and Shri Balakrishnan. It is observed that "the existing provisions of section 162, Cr. P.C. have been universally condemned by the police, the Bar, the Courts and the litigant public. The need for making substantial changes in the law is accepted by all of us in the Commission. But we, two, regret our inability to agree with the recommendations of the majority regarding the proposed amendments in sections 161(3) and 162 ".

In the said dissent note, it is also mentioned that the fundamental anomaly in the existing provisions of section 162 is that though the statute prohibits the use of the statements made to the police during investigation for the purpose of corroboration obviously on the assumption that the police record is not correct, yet permits their use for contradicting prosecution witnesses and that even for such contradicting obviously, the earlier statements should be presumed to have been correctly recorded and that the record cannot be at the same time to be correct and also incorrect.

The two Members having discussed this issue, ultimately recommended amendment of section 164, Cr. P.C. so as make it mandatory for the Investigating Officer to send to the nearest Magistrate all material witnesses questioned by him during the course of investigation and have the statements recorded on oath by that Magistrate within a day or two. The two Members thus recommended amendments to sections 161, 162 and 164 and correspondingly 172 and 173, Cr. P.C.

5. In all the workshops the subject has been discussed at great length and there has been unanimity to a large extent that substantial changes are necessary and various but divergent views have been expressed. Many of the advocates appearing for the defence, however, ultimately are of the view that in the absence of arriving at a satisfactory solution it is better to leave the provisions as they are.

6. Let us at this stage examine the necessity and the purpose of recording such statements by the police during investigation.

As we are aware, investigation in a criminal trial assumes important role and it helps the court to determine the guilt or innocence of the accused. A fair and objective investigation can unearth the crime committed and as well collect the material which can prove the guilt or innocence of the accused, section 2(b) defines investigation and lays down that investigation includes all the proceedings under the Code for the collection of evidence conducted by a police officer or by any person (other than a Magistrate) who is authorised by a Magistrate in this behalf.

Investigation commences on receipt of information as provided in sections 154 or 156 and has to be conducted as per the provisions of Chapter XII of Cr. P.C. section 160 confers powers on police officer to summon any person acquainted with the facts and circumstances of the case.

Section 161 empowers the Police Officer to record statements of persons. Then comes section 162. Though section 2(b) broadly says that investigation includes all proceedings to gather "evidence", the statements recorded by police do not by themselves constitute evidence. They are part of investigation recorded while collecting material mainly for the purpose of preparing a report to be lodged in the court. In such a situation do they attain the status of a previous statement for the purpose of sections 145 or 157 of the Evidence Act?

There is unanimity that they are not accurate and also not recorded in the manner professed to be. Many a time the thinking or ingenuity of the officer are projected into them. Therefore, they can hardly be called as the previous statements of the persons examined by the police officer.

7. After giving our earnest consideration and in view of the fact that there is unanimity in respect of the need for making substantial changes in the law, we propose that there should be changes on the following lines:

As recommended by the National Police Commission in its 4th Report, the Investigating Officer can make a record of the facts as ascertained by him on examination of witnesses which statements could be in the third person in the language of the Investigating Officer himself. This ensures that the material witnesses have been examined at the earliest moment.

Such a statement recorded in third person cannot be treated as a previous statement and consequently cannot be used for contradiction or corroboration. To that extent, a change in section 162, Cr. P.C. is necessary. The signature of the witness on the statement thus recorded need not be obtained. But, if the witness so examined desires a copy of such statement so recorded shall be handed over to him under acknowledgment.

To reflect the shift in emphasis, a corresponding amendment to section 172 should also be made to the effect that the Investigating Officer maintaining the case diary should mention about the statement of the circumstances thus ascertained, and also attach to the diary for each day, copies of the statement of facts thus recorded under section 161, Cr. P.C. Neither the accused nor his agent shall be entitled to call for such diaries which can be put to a limited use as provided under section 172, Cr. P.C.

Under the existing provisions of the Code, the preparation of the earliest record of the statement of witness is left in the hands of Investigating Officer and as the mode of recording as provided in section 162 does not ensure the accuracy of the record (It is well known that many good cases are spoiled by insidious incorrect entries at the instance of the accused and it is also well known that many innocent persons are sent up along with the guilty at the instance of the informant's party), (it is necessary to amend section 164, Cr. P.C. so as to make it mandatory for the Investigating Officer to get statements of all material witnesses questioned by him during the course of investigation recorded on oath by the Magistrate.

The statements thus recorded will be of much evidentiary value and can be used as previous statements. 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, such as recovery, etc.) On the above mentioned lines, the relevant sections can be amended as follows:

"161. (1) Any police officer making an investigation under this Chapter, or any police officer not below such rank as the State Government may, by general or special order, prescribe in this behalf, acting on the requisition of such officer, may examine orally any person supposed to be acquainted with the facts and circumstances of the case.

(2) Such person shall be bound to answer truly all questions relating to such case put to him by such officer, other than questions the answers to which would have a tendency to expose him to a criminal charge or to a penalty or forfeiture.

(3) (To be omitted).

(4) The police officer may reduce into writing a statement of facts ascertained from a person in the course of an examination under this section and if he does so, he shall make a separate and true record of the statement of facts ascertained from each such person."

"162. No statement of facts ascertained by a police officer from any person in the course of an investigation under this chapter, shall, if reduced to writing, be signed by the afore side person; but a copy of such statement duly authenticated by the police officer recording it shall be delivered under acknowledgment to the person on whose examination such statement was recorded, if so desired by that person. No such statement of facts shall be used by the prosecution or the accused either for contradiction or for corroboration under sections 145 and 157 of the Evidence Act."

(Proviso to be omitted). 164. (1) No change.

1(A) (To be added as follows):

"Every Investigating Officer shall send to the nearest Magistrate all material witnesses during the course of investigation and the Magistrate on oath record their statements, if such Magistrate is empowered to take cognizance of the case on police report, he shall keep such statements along with the FIR received by him and await the further police report under section 173. If he is not empowered to take such cognizance, he shall send the statements thus recorded on oath to the Magistrate empowered to take cognizance of the case."

No change in remaining sub-sections.

"172.(1) Every police officer making an investigation under this chapter shall day by day enter his proceedings in the investigation in a diary, setting forth the time at which the information reached him, the time at which he began and closed his investigation, the place or places visited by him and a statement of the circumstances ascertained through his investigation; and also attach to the diary for each day copies of statement of facts, if any, recorded under section 161 in respect of the person or persons whose examination was completed that day.

(2) Any criminal Court may send for the police diaries of a case under inquiry or trial in such court, and may use such diaries, not as evidence in the case, but to aid it in such inquiry or trial.

(3) Neither the accused nor his agents shall be entitled to call for such diaries, nor shall he or they be entitled to see them merely because they are referred (to) by the Court."



The Code of Criminal Procedure, 1973 Back




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