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Report No. 37

Appendix 12

Note on Section 162, and Cross-Examination by the Prosecution of Defence Witnesses

The question whether the prosecution should be permitted to contradict (under section 162) a defence witness with the statement recorded under 161 requires an examination of several aspects1 including-

(a) history of the section;

(b) object of the section; and

(c) certain hardships that will be caused if such an amendment is made.

In the Code of 1872, section 119 ran as follows:-

"119. An officer-in-charge of a police station, or other police officer making an investigation, may examine orally any person supposed to be acquainted with the facts and circumstances of the case, and may reduce into writing any statement made by the person so examined. Such person shall be bound to answer all questions relating to such case, put to him by such officer other than questions criminating himself.

No statement reduced into writing shall be signed by the person making it, nor shall it be treated as part of the record or used as evidence."

Section 145 of the Code of 1861 read "Any statement so reduced into writing shall not be signed by the person making it, nor shall it be treated as part of the record or used as evidence."

Section 162 of the Code of 1882 had declared that statements of persons made to the police during investigation, if reduced into writing, were not to be used as evidence.

For further history of the section, the under-mentioned sources2-4 may be seen.

There was a conflict before 18985-7 as to how far the accused was entitled to have copies of such statements. The Code of 1898 resolved this conflict.8

1. As to existing law, see-

(i) Bahadur Singh v. Emp., AIR 1925 Lah 367.

(ii) Sarju Singh v. Mahindra, AIR 1964 Pat 561 (564).

(iii) Sheo Shanker, AIR 1953 All 652.

(iv) King Emperor v. Vithu, AIR 1924 Bom 510 (511).

2. AIR 1941 Journal 52.

3. Emp. v. Najibuddin, AIR 1933 Pat 589 (593).

4. Bihari v. Emp., AIR 1931 Pat 152 (155) (Faz1 Ali J.).

5. Emp. v. Mannu, 1897 ILR 19 All 390 (408, 416) (FB).

6. Bikoo Khan, 1889 ILR 16 Cal 610 (612).

7. ILR 20 Cal 642.

8. For a summary of the decisions on this point and the suggestions made on the Bill of 1897 see note, "Law as to police papers", 2 CWN (Journal, 158).

In 1914 a change was introduced in section 162 as follows1:-

"27. Amendment of section 162, Code of Criminal Procedure, 1898.-After sub-section (1) of section 162 of the said Code, the following sub-section shall be inserted, namely:-

"(1A) When such statement or any part thereof is used to impeach the credit of a witness under sub-section (1), such statement may also be used to corroborate the evidence of such witness."

1. Bill No. 3 of 1914, Gazette of India, 28th March 1914, Pt. V, p. 104, clause 27.

The reasons for the proposed amendment of section 162 were thus given1:-

"Clause 27-There has been some conflict of authority as regards the bearing of section 157 of the Indian Evidence Act, 1872, on section 162 of the Code, as regards the use which may be made of a statement made by any person to a police officer in the course of an investigation. The amendment provides that when such a statement or any part of it is used to impeach the credit of the witness it may also be used to corroborate his evidence. Reference may be made to the decision in Phanindra v. King Emperor, ILR 36 Cal 281.

[In Phanindra's case it was decided2 that section 162 (as it then stood) merely prohibited the use of the record of the statement, but not the proof of such statement by oral evidence for corroboration of prosecution witness.]

1. Gazette of India, March 28, 1914, Pt. V. Statement of Objects and Reasons, p. 121.

2. Phanindra v. K.E., 1908 ILR 36 Cal 281 (285, 286) (history of section traced).

The Lowndes Committee which examined the amendment proposed in the 1914 Bill thus dealt with the matter1:-

"Clause 27:-The amendment of section 162 has been discussed at great length by the Committee. It has been the subject of amendment before, and of constant difficulty in the Courts. We, therefore, propose to recast the section, and we think that a note as to its previous history will be instructive.

1. Report of the Lowndes Committee, 23rd December, 1916, App. B. (Notes on Clauses) under clause 27.

2. Under the original Code of 1861 (section 145), a police officer could examine potential witnesses and reduce their statements to writing but the writing was not to be part of the record or used as evidence. The Code of 1872 maintained the above provisions, merely adding (section 119) that no person when examined by the police should be bound to answer incriminating questions. The only material change made by the Code of 1882 (section 162) was that, instead of the provision that the statement when so reduced to writing should not be used as evidence, it was provided that no statement made by a witness if reduced to writing should be used as evidence against the accused, thus making it clear that the provision in question was intended for the benefit of the accused.

"3. The new section did not lay down in terms that the accused might not use the written record of a witness' statement for the purposes of his defence, anything that appeared therein to his advantage, and "the Calcutta High Court ruled that he was entitled to do so. The Allahabad High Court, on the other hand, held that the writings in effect formed part of the police-diary, and were therefore privileged from inspection, and this was the position which stood to be dealt with when the Amending Act of 1898 was under consideration. There was evidently a good deal to be said on both sides, as will appear from the report of the Select Committee on the Bill which is quoted in extenso below.

The Bill as introduced proposed to adopt the Allahabad view, and put statements of witnesses when recorded by the police under section 161 on the same footing as police-diaries, and would only allow them to be used to the same extent as such diaries under section 172, i.e., in effect enacting that the accused should not have access to them at all, unless the police officer used them for the purpose of refreshing his memory, in which case the accused would be entitled to see them and cross-examine on them.

"4. The present section 162, which was embodied in the Act of 1898, was the result of a compromise in the Select Committee, whose report was in the following terms:-

"Clause 161.-This clause, as drafted proposed to affirm the decision of the Allahabad High Court, which was in conflict with the decision of the Calcutta High Court. The Governments of Bengal, the North-Western Provinces, Madras, Bombay and Burma "and most of the authorities consulted approve the decision of the Allahabad High Court, but the question involved (namely, whether the accused is entitled to inspect statements taken down by the police under section 161) is full of difficulty. In the first place, it is essential in the interests of public justice, that the sources of police information should be kept secret.

If the names of informers or directives and the nature of their information be disclosed, the detection of crime would be seriously crippled. In the second place, it is unfair to a witness that his evidence should be discredited on the strength of an alleged statement made to a policeman, which he may have had no opportunity of verifying or correcting. Such statements must necessarily be often taken down hurriedly and may be incorrectly copied out. They are not taken down as depositions, or with regard to the rules of evidence, but merely to aid the police in the course of their investigation.

But, in the third place, it may be most important for the accused to show that a witness called for the inspection is telling a story substantially different from that which he told when first questioned by the police. We have endeavoured to reconcile these conflicting interests by reverting to the language of the Codes of 1861 and 1872, and adding a proviso compelling the Court, on the application of the accused, to refer to such statements, and then empowering it in its discretion to allow him to have copies of them.

"We then provide for the mode in which these statements are to be used. It is clear that a witness ought not to have his credit impeached on the strength of a statement alleged to have been made to a policeman, unless and until it is shown that he had made that statement."

"5. The result was not altogether a happy one. It will be noticed that the section deals mainly with the writing and enacts that it shall not be used as evidence, with a proviso that the Court may in its discretion direct the accused to be furnished with a copy of it presumably only in order that the accused may know that there is something in the writing which may help his defence-and goes on to say that the statement (i.e., what the witness said to the police officer) may be used in the ordinary course to impeach the credit of the witness, obviously implying that for this purpose it must be duly proved.

"6. It seems clear that all that the amendment of 1898 intended to effect was to make it clear that the accused had no right to call for or see the record of any statements taken down by the police under section 161, unless the Court thought that in the interests of justice he should be allowed to do so. It did not purport to deal with, and has left untouched, the further question whether or not a statement made by a witness under section 161, as apart from the written record of the statement, might be used by the prosecution for the purpose of corroborating one of their witnesses under section 157 of the Evidence Act, and this is at all events one of the principal difficulties with which we have to deal now.

"7. The re-draft of the section which we propose will make it clear that the statements taken down under section 161 (and not merely the written records of such statements) are not to be used in any way or for any purposes except as allowed by the proviso. Having regard to the fact that the making of such statements is compulsory under section 161, and to the way in which, and the circumstances under which, they are usually recorded, we do not think that they are of any corroborative value where the witness merely repeats the same statement in Court, and that ought not therefore to be allowed to be used for the purpose of corroboration under section 157 of the Evidence Act.

If the really material fact to the prosecution is that a statement was made to the police on a particular date or at a particular place, this fact will of course still be provable in the ordinary course, and it will be open to the Courts or to a jury to make any proper deduction from this fact and the action which was taken on it. The amendment will also, we think, make it clear that if the accused wishes to rely on anything in the previous statements of a witness to the police, of which he has been allowed by the Court to have a copy, he will have to prove it in the ordinary way.

If the witness admits this in cross-examination, it will of course be sufficient; if he denies the contradiction, and the police officer who took it down is called by the prosecution the previous statement of the witness on the point may be proved by him; if he is not called by the "prosecution, the Court would no doubt itself in most cases call him, or if the accused is calling evidence in support of his defence, it may be worth his while to call the police-officer himself. But it is clear that unless the previous contradictory statement is proved in some way in accordance with law, it ought not to depreciate the witness statement on oath.

It will be observed that under our amendment, if any part of the previous statement of the witness is used for the purposes of cross-examination by the accused any other part of it may be used by the prosecution within the proper limits of re-examination. This is we think, the only way in which the previous statement ought to be allowed to be used by the prosecution."

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

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