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Report No. 37

441. Section 161 and sending of copies to Magistrates-Suggestion of Madras Bar Council.-

The following suggestion1 has been made by the Bar Council, Madras with reference to statements recorded and under section 161.

"In view of the 1955 amendments to section whereunder these statements rank on par with evidence, there is likely to be a tendency for the police to delay the recording of such statements till a complete picture emerges out, or to ante-date the statements so as to avoid any criticism that they were recorded in a belated manner. Moreover, if the high status given to these statements is to be maintained, it is suggested, that copies of such statements should be forwarded to the Magistrate having jurisdiction within 24 to 48 hours of the recording thereof. This procedure ensures the reliability to the statements as well as their fullness and accuracy".

We have considered the suggestion carefully. We have already recommended2 some changes as to sending of copies, and we think that those changes would be enough.

1. F. 3(2)/55-L.C., Pt. III, S. No. 52.

2. See discussion under section 161 and sending of copies.

442. Section 161 and identification parades.-

With reference to section 161, the following suggestion1 has been made by the Inspector General of Police, Madras:-

"At present there is no provision in the Investigation Chapter for holding identification parades. It is better to have some specific provisions regarding the holding of such parades during investigation.".

We think that the existing law is adequate. As the holding of identification parades is a matter of daily occurrence, we tried to study some aspects of the matter, and we record below some of the broad propositions which can be gathered from the case-law.

1. F. 3(2)/55-L.C., Pt. III, S. No. 52.

443. When identification parades are held before Magistrates, they record the statements under section 164. Whether section 164 applies to them was a matter left open by the Supreme Court.1

As the matter stands now,2-4 we do not regard any provision as necessary.

The relevancy of evidence about such identifications is of course, outside the scope of the Code. "An identification parade belongs to the stage of investigation by the police. The question whether a witness has or has not identified the accused during investigation is not one which is in itself relevant after trial.5 It is governed by various decisions6 under section 9 of the Indian Evidence Act, 1872.

1. State v. Shingara Singh, AIR 1964 SC 358 (363), para. 16.

2. Samiuddin v. Emp., AIR 1928 Cal 500 (502).

3. Peare Lal v. State, AIR 1961 Cal 531 (Article 20, considered).

4. Kamraj (in re:), AIR 1960 Mad 125 (129-130) (Somasundaram and Ramaswami

5. Sangiah (in re:), AIR 1948 Mad 113, para. 4 (Rajmannar J.).

6. Asharifi, ILR (1960) 2 All 488: AIR 1961 All 153 (Reviews case-law).

444. There are rules and instructions on the subject.1 In theory, the police can also hold identification parades. But since that would attract section 162, they have to be held before Magistrate.

It is unnecessary to consider whether section 80, Evidence Act, applies to such statements.2

1. See Asharfi v. State, AIR 1961 All 153 (159),"para. 2.

2. Cf. Sheo Raj, AIR 1964 All 290.

445. As to the law in England, the discussion by Lord Denning in a recent case1 relating to false imprisonment may be quoted:-

"When a constable has taken into custody a person reasonably suspected of felony, he can do what is reasonable to investigate the matter, and to see whether the suspicions are supported or not by further evidence. He can, for instance, take the person suspected to the place where he says he was working, for there he May find persons to confirm or refute his alibi. The constable can put him up on an identification parade to see if he is picked out by the witnesses. So long as such measures are taken reasonably, they are an important adjunct to the administration of justice. By which I mean, of course, justice not only to the man himself but also to the community at large. The measures must, however, be reasonable."

1. Dallison v. Caffery, (1965) 1 KB 348: (1964) 3 WLR 385: (1964) 2 All ER 610 (CA).

446. Section 161 and Judges Rules.-

The Supreme Court had, in one case,1 occasion to deal with the admissibility of statements made by persons in custody with reference to section 27 of the Evidence Act. In the judgment of Mr. Justice Hidayatullah, in that case, attention has been drawn to the following recommendation of the Royal Commission on Police Powers and Procedure2:-

"(48). A rigid instruction should be issued to the police that no questioning of a prisoner or a person in custody about any crime or offence with which he is or may be charged, should be permitted. This does not exclude questions to remove elementary and obvious ambiguities in voluntary statements under No. 7 of the Judges Rules, but the prohibition should cover all persons who, although not in custody, have been charged and are out on bail while awaiting trial."

Mr. Justice Hidayatullah also observed, that this was a matter for the legislature to consider.

1. State of Uttar Pradesh v. Deoman Upadhya, (1961) 1 SCR 4062 (4063): AIR 1960 SC 1125 (1147), para. 73.

2. Royal Commission on Police Powers and Procedure, (1928-29), Cmd. 3297.

447. It may be noted that in England the Revised Judges' Rules framed in 1964 contain elaborate provisions as to questioning by police. Rules I and III (a) and (b) of these rules are quoted below:-

"I. When a police officer is trying to discover whether, or by whom, an offence has been committed. He is entitled to question any person, whether suspected or not, from whom he thinks that useful information may be obtained. This is so whether or not the person in question has been taken into custody so long as he has not been charged with the offence or informed that he may be prosecuted for it."

"III. (a) Where a person is charged with or informed that he may be prosecuted for an offence he shall be cautioned in the following terms:-

"Do you wish to say anything ? You are not obliged to say anything unless' you wish to do so but whatever you say will be taken down in writing and may be given in evidence."

"(b) It is only in exceptional cases that questions relating to the defence should be put to the accused person after he has been charged or informed that he may be prosecuted. Such questions may be put where they are necessary for the purpose of preventing or minimising harm or loss to some other person or to the public or for clearing up an ambiguity in a previous answer or statement.

"Before any such questions are put, the accused should be cautioned in these terms:-

"I wish to put some questions to you about the offence with which you have been charged (or about the offence for which you may be prosecuted). You are not obliged to answer any of these questions and answers will be taken down in writing and may be given in evidence."

"Any questions put and answers given relating to the offence must be contemporaneously recorded in full and the record signed by that person or if he refuses by interrogating officer".

448. We have considered the question whether any provision in the Code on the subject should be inserted. We also studied the Revised Judges Rules (1964), and the extensive1 literature thereon. We come to the conclusion that it may not be convenient to make these elaborate provisions in our Code. We also found that even in England, there is controversy as to the working and object of the Judges Rules, and also as to the precise object sought to be achieved by these Rules.1 Further, in India, the answers of the accused to the questions put by the police are not admissible in evidence except to the limited extent provided for by section 162. Hence the absence of statutory provisions as to warning would not harm the accused at the stage of trial.

1. Literature on the subject is abundant. By way of examples, the following may be referred to-

(a) Hoffman Te judges Rules, (1964), Lawyer 23, 25.

(b) Cowen and Carter Essays on Evidence, (1956), p. 46.

(c) Lord Porter English Practice and Procedure, (1949) 2 Current Legal problems 13, 23.

(d) Proceeding of the Commonwealth Law Conference (1965), Topic 2, Papers by Norman Skelhorn and Professor K.O. Shatwel.

449. Section 162(1).-

In section 162(1), the words "if reduced into writing" have to be omitted, as it is now proposed,1 that the statement of every witness who is examined by the police shall be reduced to writing.

1. See section 161, as proposed to be amended.

450. Section 162 and cross-examination by the prosecution of defence witness.-

The question whether the prosecution should be allowed to cross-examine a defence witness by bringing out contradictions with his statement recorded in police investigation, has been discussed before us at length, in view of the suggestion to that effect made by a State Government.1 The history and object of section 162, and the case-law on the subject, were gone into by us.2

The suggestion is, that in section 162(1), in the proviso, for the portion beginning with, the words "Provided that" and ending with the words "by the prosecution", the following be substituted:-

"Provided that, when any person is examined as a witness in such inquiry or trial whose statement has been reduced in writing as aforesaid, any part of his statement, if duly proved, may be used by the accused or the prosecution."

It has been suggested3 that section 162 of the Code be amended so as to put on par the accused and the prosecution in the matter of contradiction or cross-examination of the witness on the basis of the statement made by him before the police. At present, the accused can do so whereas the prosecution has to obtain the permission of the court before acting accordingly. A copy of the Bill forwarded by the State Government (for the administrative approval of the Government of India before its introduction in the State Legislature) was sent to the Law Commission for consideration.

The following proviso to sub-section (1) of section 162 has been suggested4 in the Bill:-

"Provided that, when any person is examined as a witness in such enquiry or trial whose statement has been reduced in writing as aforesaid, any part of his statement, if duly proved, may be used by the accused or the prosecution."

The Statement of Objects and Reasons to the Bill is as follows:-

"In view of sub-section (1) of section 162 of the Code of Criminal Procedure, 1898, no statement made by a person to a police officer in the course of an investigation under Chapter 14 and reduced in writing can be used at any inquiry or trial in respect of the offence under investigation. But, under the proviso, if such person is called as witness for the prosecution the accused has been given a right to use such person's statement to contradict him, but the prosecution can use it for similar purpose only with the permission of the Court, which is generally given when the witness turns hostile. However, if the same person is examined as a defence witness, the statement cannot be used at all. When such persons come as defence witnesses, difficulty is experienced by the prosecution, particularly in identification parade cases.

"As there are other safeguards, it is proposed to allow the use of a police statement to contradict a witness even when he is called by the defence. The High Court, which was consulted, is in favour of such amendment."

We have considered the matter separately.5

1. F. 3(2)/55-L.C., Pt. VII, S. No. 459.

2. For detailed discussion, see Appendix 12.

3. F. 3(2)/55-L.C., Pt. VIII, S. No. 459. (Suggestion of a State Government.).

4. F. 3(2)/55-L.C., Pt. VII, S. No. 459. (Suggestion of a State Government.).

5. See discussion relating to section 162.

451. We are opposed to any such change, as it would practically take away the sub-stratum of section 162, which is based on the principle that these statements ought not to be admissible. That only the accused should have the right to use these statements, is a special and exceptional provision, which should not be extended.

Code of Criminal Procedure, 1898 (Sections 1-176) Back

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