Report No. 37
Note on Section 161(2) and the word "Truly"
Section 161(2) provides, that the person examined by the Police Officer shall be bound to answer all questions relating to the case put to him by such officer (other than incriminating questions). This sub-section, as it stood in 1898, contained the word "truly". In omitting the word "truly", the Select Committee of 1898 made these observation:-
"We have amended this clause by reverting to the law as it stood under the Codes of 1861 and 1872. Under those Codes a person examined by a police officer was bound to answer all material questions, but was not liable to be prosecuted for giving false evidence in respect of his answers under section 193 of the I.P.C.1 It seems to us unfair that a man should be liable to be convicted of giving false evidence on the strength or by the aid of a statement supposed to have been given to a police officer, but which is not given on oath, which he has not signed and which he has had no opportunity of verifying.
Such statements may be hurriedly taken down as rough notes, as the police officer is not trained in taking evidence, and the notes are often faired out by another officer. They bear no resemblance to depositions and ought to have no weight as such attached to them. We are aware that there are inconveniences in abolishing the direct liability for giving false evidence to the police, but the balance of expediency seems to us to be in favour of the old law. The provisions of sections 202 and 203, I.P.C. appear to us to afford a sufficient safeguard against false information." 2
As to section 161 as it stood in 1872 and 1882, the under-mentioned cases 3-5 may be seen.
There was a case6 of smuggling of gold from the Persian Gulf to Bombay by sea. The accused were prosecuted for offences punishable under section 120B, Indian Penal Code read with section 167(2) of the Sea Customs Act, 1878 and section 8(1) of the Foreign Exchange Regulation Act, 1947. Some of the accused had made incriminating statements to the Customs Officer, having been summoned and interrogated by him under section 171A of the Sea Customs Act, 1878. Under section 171A(3), all persons so summoned are bound to tell the truth upon any subject respecting which they are examined or make statements.
The point involved was, whether the said confessional statements recorded by the Customs Officer were hit by section 24 of the Indian Evidence Act, and, as such, were inadmissible in evidence. It was held, that these statements were not hit by section 24 of the Indian Evidence Act. The question whether these statements fell under section 161(2), Criminal Procedure Code or not, was not in dispute.
The following observations of Tambe J. are however, relevant:-
"That a person should always tell truth is a moral principle,, but it cannot be said to be a legal principle as such. Whenever, the Legislature requires a person to tell truth it has so enacted in various enactments. It is only when it has so enacted and a person fails to tell truth that he comes within the mischief of the provisions of the Indian Penal Code."
When the deletion was made in 1898, the implications of the deletion on punishment for refusal to answer a question put by the police officer were not, it seems, considered. Since the person examined under section 161 is not bound to state the truth, a refusal to answer the questions, it has been held, is not punishable under sections 176, 179 and 187 of the Indian Penal Code.7 In fact, the section (as it stands now) restores the law under section 119 of the Code of 1872, whereunder the wording was "shall be bound to answer all questions"; this provision, it was held, did not constitute an express provision of the law to "state the truth" within the meaning of section 191 of the Indian Penal Code.8
A similar view has been taken by the High Court of Rangoon,9 holding that such refusal is not punishable under section 179 Indian Penal Code.
1. See ILR 7 Cal 121 and 10 Cal 405.
2. Report of the Select Committee, dated 16-2-1898.
3. Kassim Ali, ILR 7 Cal 121 (FB) (Code of 1872).
4. Q.E. v. Ismail, ILR 11 Bom 659 (661) (1882 Code).
5. Q.E. v. Sankarlinga, (1900) ILR 23 Mad 544 (546).
6. Laxman Padma Bhagat v. State, AIR 1965 Bom 195 (208).
7. Q. E. v. Sankarlinga, 1900 ILR 23 Mad 544 (545).
8. Empress v. Kassim Khan, 1890 ILR 7 Cal 121 (FB).
9. Mauzanagyi v. Emp., ILR 8 Rang 511: AIR 1931 Rang 26.
Suggestion regarding section 179, Indian Penal Code.-Now, this leaves a very curious situation, because section 161(2) imposes an obligation to answer which is not enforceable by any penal sanction. At present, its only impact is to confer an absolute privilege.1 This lacuna should be removed. The proper place, however, for a provision on the subject would be the Indian Penal Code, and it might be desirable to make a provision in section 179, Indian Penal Code, by adding after the words "to state the truth" the words "or to answer any question." 2
Proposals are made from time to time to add the word "truly" in section 161(2). The matter was considered in connection with the Law Commission's report on Judicial Administration. The Commission did not favour the proposal.3
1. Cf. Sanjivi v, Koneri, AIR 1926 Mad 521 (for section 179, Indian Penal Code).
2. To be summarised in the Appendix relating to amendment of other laws.
3. 14th Report, Vol. 2.
Suggestion regarding section 175, Code of Criminal Procedure.-In section 175, the word "truly" has not been omitted, when section 161 was altered in 1898. The word "truly" should be omitted in section 175 1-2of the Code of Criminal Procedure.
Another question which has arisen under section 161(2) is, whether a person giving a false answer under section 161 is guilty of an offence under section 182, Indian Penal Code. The view of most of the High Courts seems to be, that the expression "gives information" in section 182, I.P.C. cannot apply to information which is supplied not voluntarily but in answer to a question.3 A contrary view was taken in Patna4 and Sind cases.5 There are also observations in a Bombay case6 which throw a doubt on the subject, by taking a wide view of section 182, Indian Penal Code.
There is a conflict of authorities on the point as to whether a person giving a false reply under section 161, Criminal Procedure Code is guilty of an offence under section 182, Indian Penal Code or not as pointed out by the Joint Secretary and Legislative Counsel on page 5 of his note. The question as to how far there is need to amend section 182, Indian Penal Code in order to resolve this conflict may be considered. The majority view has been, that the expression "gives information" in section 182, cannot apply to information which is supplied not voluntarily but in answer to a question put by a public servant.
One of the ways to resolve this conflict may be to insert the word "voluntarily" in between the opening word "whoever" and the second word "gives" occurring in section 182, Indian Penal Code. This will ensure that a person making a statement under section 161(2), Cr. P.C. will not be made punishable under section 182, I.P.C. [In case, it is considered desirable that such a person should be made punishable under section 182, I.P.C. for giving false information, the following words may be inserted after the word information:-
"Whether voluntarily or in reply to questions put to him by any public servant".
Answers under section 161, Code of Criminal Procedure, cannot be made the basis of a prosecution under section 211, Indian Penal Code, because such answers do not amount to a "charge".7 As has been observed, "It would make criminal investigation very difficult if any person who gave voice to a suspicion were liable to criminal prosecution."8
There is, of course, one matter on which the anticipations of the 1898 committee have not been realised. That committee assumed that a person making false statement would be guilty under section 203, Indian Penal Code. But it has been held,9-11 that such a person does not volunteer the information and therefore section 203, Indian Penal Code does not apply. If this view is correct, sections 202, Indian Penal Code, (relating to omission to give information) would also be inapplicable to an omission to answer a question under section 161(2) of the Code of Criminal Procedure.
1. To be considered under section 175, Code of Criminal Procedure, 1898.
2. Cf. Sarkar on Code of Criminal Procedure, (1966), p. 257.
3. U. Hlaing v. R.P. Abigail, AIR 1937 Rang 232 (233) (Reviews case-law).
4. Bodhau v. Emp., ILR 7 Pat 715: AIR 1933 Pat 555 (1).
5. AIR 1936 Sind 90.
6. Q.E. v. Ramji, 1886 ILR 10 Bom 124 (125) (earlier order of 30 June, 1885, passed without appearance of parties).
7. Chinna Ramana Gowd v. Emp., 1908 ILR 31 Mad 506.
8. Kodangi v. Emp., AIR 1932 Mad 24 (Jackson J.).
9. Sarju Sonar, (1910) 11 Cr LJ 438 (All).
10. Emp. v. Nga Po Lwin, AIR 1920 Upper Burma 20.
11. But see Pattammal, AIR 1940 Mad 898 (899) (case under section 201).
Suggestion regarding sections 201 to 203, Indian Penal Code.-In addition to the amendment to section 179, Indian Penal Code which is now recommended,1 a clarification of the scope of sections 201 to 203, Indian Penal Code is also desirable.2
The points concerning section 182 and sections 201 to 203, Indian Penal Code, should also be considered when the Indian Penal Code is revised.3
1. See recommendation regarding section 179, Indian Penal Code.
2. To be considered under sections 201 to 203, Indian Penal Code.
3. To be summarised in recommendation for other Acts.