Report No. 37
433. The true position seems to be this-
(a) Section 160 cannot, obviously, cover the third category, namely, the accused in custody, nor perhaps a person in the second category, as he is about to be arrested. But it can cover the first category.
(b) As regards section 161, it is, in our view, to be regarded as embracing all the three categories, (subject, of course, to the limitation regarding incriminating questions). In a Bombay case,1 it was held that section 161 does not apply to the accused. We regret that, with great respect we are unable to agree with the view.
In view of the above position, it is unnecessary to disturb the language of sections 160-161 on this point.
1. Amrit v. State, AIR 1960 Bom 488 (Raju J.).
434. Our view is, that the words "acquainted with the circumstances of the case" in sections 160 and 161 apply to suspected persons, though those words in section 170 do not cover the accused, because in section 170 the accused is separately mentioned. The view of Reilly, Sundaram Chetty and Waller JJ. in the Madras case1 were considered by us. But, with great respect, we are not able to agree with the observations in that case that section 160 does not apply to the accused, since it excludes incriminating statements. No change in language in the text of the sections is necessary. Nor need the marginal notes be disturbed, as they cannot control the section.
1. AIR 1932 Mad 391.
435. Section 161 and obligation to speak the truth.-
We have considered the question whether the word "truly" should be inserted in section 161. We are of the opinion that it should not be added, in view of the history of the section, and certain risks involved in it.1
1. For detailed discussion, see Appendix 11.
436. The connected point, namely, that a refusal to answer questions under section 161 of the Code of Criminal Procedure is, as the law stands now not punishable in view of the narrow language of section 179, Indian Penal Code, is more important. We recommend that the relevant sections of the Indian Penal Code,1 should be amended to cover such refusal, as there can be no two opinions about the need for penal sanctions for refusal to answer these questions.
1. To be considered when the Indian Panel Code is revised.
437. Section 161 and points in 14th Report.-
In an earlier Report,1 several suggestions were made regarding the manner of recording statements by the police and also regarding the need for recording the statement of every person whom the prosecution wishes to examine at the trial. With certain modifications, we are giving effect to them. Necessary amendment is recommended. The recommendations made earlier and the modifications which we are suggesting, are detailed below:
(a) The first suggestion was, that, instead of leaving it to the discretion of the police officer to record the statement into writing, it should be made obligatory upon him to record in writing the statement of every person who has been examined by him, under section 161(1).
This recommendation is based on sound logic, inasmuch as the purpose and utility of a statement before the police officer have been changed after the amendment of 1955. Prior to the amendment, the statement could be used for the limited purpose of contradiction under section 162. But now, it can (alongwith other materials) form the basis of a charge,2 and the accused, is as of right, entitled to a copy of the statement made before a police officer.3 The latter object would be rendered nugatory if the police does not record the statement at all. It is, therefore, absolutely essential in the interest of justice, that changes should be made making it obligatory for the officer to reduce into writing every statement made before him under section 161.
(b) The next recommendation was, that "the law should insist that the investigating officer should record the statement of the witnesses as far as possible in their own words". There is no doubt that the recording of the mere substance of a statement by a police officer may be useless or misleading.
We would, therefore, implement this recommendation.
(c) The next recommendation in the earlier Report, however, raises a highly controversial issue. It was stated, that the statement so recorded should be signed by the witness, where the witness is literate and can himself read out the recorded statements. The case of illiterate persons was left untouched, because the Commission felt helpless regarding them. But the question goes to the root of the matter. What are we going to do with the signed statement, and what strength does it add to the recorded statement ?
It is patent, that with all the changes referred to, a statement before the police officer is not yet admissible as substantive evidence, and no court could ever sustain a conviction based on the statement before the police as a previous deposition record before a Court of law. Nor can it be overlooked, that the statement is recorded before a police officer, in whom the law has not so far placed the same confidence as in a judicial officer.
The signature of the witness cart, in these circumstances, add very little to the strength of the statement recorded by the police officer. It is true, that the statement can be used for contradicting the evidence in court of the witness, to the extent permitted by section 162. But, then, it can reasonably be envisaged that in every case where a witness is confronted with the statement before the police officer by showing him the signature to it, he would invariably take the plea that his signature was given under duress or without reading what was recorded. It is not a statement made on oath. The strength given by the signature of the witness below such a statement would be very little.
It has been said, that a literate person can read the signed statement himself, and see whether it is correct, whereas an illiterate person cannot read his statement and could be duped by the police officer. But there is no assurance that the literate persons will not be threatened by him. If a witness challenges a police officer that the statement which has been recorded is not correct according to his version, he cannot urge that an amendment should be made, by filing an affidavit.
Upon a reconsideration of the question, thus, we are unable to accept this recommendation of the 14th Report. Our reasons in this respect may be briefly re-stated-
(i) the calibre of persons who are in the Police has not improved, and mal-practices in police investigation still continue to exist;
(ii) the requirement that witnesses making statements before the police should sign the statements, will not serve any useful purpose;
(iii) such requirement may even deter the witnesses from making such statement.
1. 14th Report, Vol. 2.
2. Sections 207A(7).
3. Section 173(4).
438. Section 161 and confessions.-
The recommendation in the 14th Report1 regarding admitting in evidence confessions made by the accused to senior police officers concerns the Evidence Act, and involves no change in the Code of Criminal Procedure.
1. 14th Report, Vol. 2.
439. Section 161 and sending of copies.-
With reference to section 161, it has been suggested that for sub-section (3), the following shall be substituted, namely:-
"(3) The police officer shall reduce into writing any statement made to him in the course of an examination under this section and he shall make a separate record of the statement, of each such person whose statement he records and shall forthwith send the copies of the statements so recorded to the Magistrate having jurisdiction to enquire into the case."
The suggestion is contained in an Amendment Bill which was introduced in the Rajya Sabha.1
1. F. 3(2)/55-L.C., Pt. VII, S. No. 407 (Shri K. V. Raghunath Reddy's Amendment Bill, 1963) (Rajya Sabha Bill 11 of 1963).
440. The amendments proposed in the Bill were considered by us in detail.1 The proposed amendment seeks to put in section 161(3) three propositions-
(a) Every statement made to the police in the course of an examination under this section shall be reduced into writing;
(b) Separate record shall be made of the statement of each such person whose statement is recorded;
(c) The police officer shall forthwith send copies of the statements so recorded to the Magistrate having jurisdiction to inquire into the case.
The first proposition would be covered by the amendment of section 161 which we have recommended.2 The second proposition re-states the existing law, in substance.
The third proposition evoked lengthy discussion before us. The main object of the amendment proposed on this point3 appears to have been to prevent tampering by the investigating officer, particularly in respect of those criminal cases where factions are arrayed on either side. Various points were raised in the course of the discussion before us on this suggestion. First, it was urged that the Magistrate to whom the copies of statements are to be sent would not have the time and machinery to preserve, arrange and index them. Secondly, a doubt was raised whether tampering was prevalent on a noticeable scale, and also, whether tampering would give any advantage to the police, as the statement cannot be used by the prosecution (except to the very limited extent provided for in section 162 as amended in 1955).
As against these points, it was noted that in cases of factions, one group may have the desire to get the statements altered to it's advantage, so as to face the witnesses of the opposite group with contradictions. It was also considered, that the difficulties of preserving and indexing may not be serious, as even now occurrence reports" are sent to the Magistrate empowered to take cognizance.4
In the course of our discussion, we were also asked to consider whether the proposed provision, (if at all it is to be inserted), should not be limited to offences affecting the human body, and offences of rioting, and the like-these being the usual cases where the aspect of "factions" was most prominent. We were not, however, inclined to limit it like that. We found the amendment to be desirable and practicable. We recommend, that the proposed amendment may be accepted. The copies of the statements should be sent through the superior police officer5 (if any), appointed under section 158.
1. On an assurance being given by the Government that the matter would be referred to the Law Commission, the Bill had been withdrawn. See Rajya Sabha Debates, September, 1965, columns 207 to 211.
2. Recommendation as to section 161.
3. See Rajya Sabha Debates, 3rd September, 1965, Columns 172-173, speech of Shri K.V. Raghunatha Reddy, mover of the Amendment Bill.
4. See section 157(1).
5. Compare section 173(2).
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