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Report No. 154

Other alternative

8. As discussed above most of the defence counsels while acknowledging the incongruity in the provision i.e. section 162, however, took the stand that in the absence of having any satisfactory change it would be proper to retain the provision as it is. They are also firmly of the view that the defence and the court should know what the earliest version given by the witness and that can be the only basis for cross examination. In this context they contended that getting the statements recorded under section 164 does not solve the problem and there would be considerable delay.

Some of them, however, suggested that to ensure the authenticity of the statements some checks may be imposed. One suggestion is that the investigation officer soon after recording the statement should give a copy to the deponent and also send them to the superior officer at the earliest point of time so that any possible interference by the interested person can be avoided to a large extent. In this context, they also suggested that if the separate investigating agency is going to be set up the situation would be different and statements recorded by such officers of better status would be more authentic.

Coming to the signing of the statements by the witness it is said if he is a literate the signature can be obtained so that he may not easily prevaricate. They also pleaded that mere making a record of the facts ascertained as suggested by the Police Commission would be of no use to any body as the same cannot be used for any purpose.

9. We have also carefully considered these views. It is true that if such statements are not recorded under section 164, then the record containing statements of the facts ascertained, prepared by the Investigating Officer cannot be of any use except enabling the court to pursue which may give some aid. We do visualize that there are quite a few practical difficulties in getting the statements recorded under section 164. There is bound to be some delay which may give scope for interference by others trying to influence the witnesses.

Even after making the statement on oath under section 164, the witness may prevaricate. It cannot also be presumed that all what was stated in such statement under section 164 is always true; but the redeeming feature is that it is made on oath. As it is, the Magistrates who are overburdened and they may not find sufficient time to record such statements. Therefore, more number of Magistrates have to be appointed. These are some of the difficulties which we have to bear in mind, but they are not insurmountable. If sufficient number of Magistrates are appointed and if the separate investigating agency is set up promptly, the delay in recording statement under section 164 can be avoided.

10. At this stage we shall consider one other suggestion namely tape-recording or video recording of such statements. The suggestion is attractive but the question whether it would be workable under our conditions. Firstly, it would be costly and secondly, impracticable, even such recordings cannot be fool proof and are also vulnerable to tampering. In its report the Royal Commission on Criminal Justice considered this suggestion and also opined that it would be costly and impracticable.

11. Having seriously considered all these aspects we are of the view that the other alternative for the time being that can be thought of is to retain the provision as it is and introduce some safeguards against any error or malpractice in recording with a view to make the statement more authentic.

12. If a separate investigating agency consisting of well trained and better personnel accountable only to the superior Officer is set up, they would to a large extent be sincere and honest in recording such statements. However, for the time being if a provision is made that a copy of the statement should be given to the deponent under acknowledgment and also send them to the Magistrate and to the superior officers that provision would ensure against any error or malpractice being committed by the officer section 162 be, therefore, suitably amended.

13. If the witness is a literate, there is no harm in obtaining his signature, before giving a copy to him.

14. So for as the use of the statement is concerned, no change is necessary, it be limited for the purpose of cross examination as provided under section 145 of the Evidence Act. The absence or presence of material omissions as found in the cross examination would be a factor in appreciating the veracity of the witness and no further corroboration need be sought from the statement recorded by the police particularly when it is not on oath recorded by a court and where its authenticity is not of such high degree.

15. However, in our considered opinion, the first course is more salutary. As recommended, if a separate investigating agency manned by officers of high calibre and integrity is established, the statements of facts ascertained by them will be more authentic. Keeping in view that the witnesses may prevaricate and the handicaps the defence may face, it is desirable that the statements should be recorded under section 164 of the Code, which can be used both for corroboration and contradiction and that would also help in speedy trial.

But this involves appointment of more number of magistrates because their present strength is wholly inadequate and they are already over-burdened. Likewise setting up and structuring of the separate Investigating Agency is bound to take considerable time. Till such time these requirements are met, we are of the view that the other alternative course as suggested above may be adopted and the existing section 162 may suitably be amended.

The Code of Criminal Procedure, 1973 Back

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