Report No. 37
The Select Committee on the 1923 Bill expressed this view1:-
"Clause 33:-We discussed the provisions of the proposed new section 162 at length and considered in detail the opinions received in connection with it. We recognise the force of some of the criticism directed against the section, but we do not think that power should be given to contradict by means of police diaries a prosecution witness who has turned hostile, and still less power should be given in respect of a defence witness. We have, therefore, left the clause unaltered."
The amendments made in 1955 may be briefly dealt with.
1. Report of the Select Committee dated 26th June, 1922. Members of the Committee were T.B. Sapru, W.H. Vincent, M.B. Dadabhoy, S. Raza Ali, J. Chaudhury, H. Mancrieft Smith, B.C. Mater and Zulfiquar Ali Khan.
The Bill of 1954 proposed deletion of section 162. The Joint Committee, however, observed: -1
"16. Clause 22 (Original clause 21)- This clause provided that section 162 of the principal Act be deleted. The Committee feel that the deletion of this section will do away with the protection enjoyed at present by the accused against the prejudicial use of untruthful statement of witnesses recorded by the police officers. The effect of such an omission would be that the statements recorded by the police under sub-section (3) of section 161 may be used by the prosecution both for the purpose of corroboration as well as of contradiction.
The Committee consider that the statements recorded by the police should be used for contradiction only and this right should be available both to the accused and the prosecution. As the prosecution is not entitled to cross-examine its own witnesses without the permission of the Court, it has been specifically provided that the statements recorded by the police under sub-section (3) of section 161 can be used by the prosecution for the purpose of contradiction, with the permission of the Court.
"The second proviso to sub-section (1) of section 162 has been inserted in section 173 with suitable modifications. The Committee have, therefore, omitted it from section 162.
"The restoration of section 162 with the proviso that statements can never be used for the purpose of corroboration but for the purpose of contradiction, ensures that the papers will be available both to the defence and to the prosecution.
Normally, it is only the defence which is entitled to cross-examine. The prosecution can never cross-examine its witnesses without the permission of the court and the permission is never given unless the witness is held to be hostile by the Court. Therefore, if the witness turns hostile the court may permit him to be confronted with the statements that he made before the Court."
Hence the section was not deleted but amended as it now stands.
1. Report of the Joint Committee September, (1954), p. (vii), para. 16.
The suggested change may go against the whole policy of section 162. In a Bombay case Beman J. made these observations:-1
"The section plainly constitutes an exception to the ordinary rule of evidence. The proviso again endrafts an exception upon the exception. And in giving effect to the section and the proviso together it is necessary to keep carefully in sight what the Legislature really means. About this the language and the policy of the section, combined, leave, I think, no reasonable doubt. Before the last amendment, statements made by witnesses to the Police, and recorded by the Police might not be used as evidence against the accused. But there was nothing to prevent them being used in favour of the accused.
They were often so valuable for that purpose, that in almost every case, the accused sought to know what they contained, with the object of using them if suitable, to his own advantage. In order to curtail to some extent that liberty, the section was amended in its present form. The effect of the amendment is to restrict the privilege of the accused. He can now only obtain access to written statements made by prosecution witnesses to the police, at the discretion of the Court. It is no longer a matter of right.
"The proviso is clearly limited to the purpose of this single concession, in derogation of the universal prohibition contained in the body of the section, to the accused. This is so plain on the face of the section and proviso, that I should have thought there could have been no doubt about it. The proviso deals with one case and one case only, the case of witnesses "called for the prosecution" whose statements have been taken down "in writing as aforesaid".
And the only concession it makes to the accused is to allow him, upon his request, and subject to the Court's discretion, to have access to a "copy thereof", namely, of the recorded statement, and thereupon to use it for one purpose and one purpose only, namely, to break down the evidence of the prosecution witness already standing against him.
On the face of it the proviso does not cover the case of a witness for the defence, whose statement may have been recorded by a policeman, nor allows the prosecution to impeach the credit of such a witness by examining him upon any written statements he may have made to the police. A fortiori the proviso could never have been intended (and I think that its terms are plain enough to the contrary) to allow the prosecution to impeach the credit of its own witnesses for its own purposes, and against the wish of the accused, by reference to police testimony.
That view presents, on the face of it, these two startling difficulties. (1) That the Legislature has in this important matter given the prosecution a marked advantage over the accused. And this is opposed to the first principles of our criminal jurisprudence. (2) That in effect it works out to this, that the prosecution would be empowered indirectly and under the pretence of shaking the credit of its own witnesses, to substitute in the record, as evidence against the accused person, not what those witnesses have said on oath at the trial but what they have said or may have said in circumstances altogether unknown and uncontrolled, to its own police officers.
That is in fact what has happened in this case, and underlies, as I understand, the Advocate-General's certified objection to Shankar's statement to Narayanrao. I think it too plain to need further argument that if the prosecution is precluded from using these statements to impeach the credit of witnesses for the defence, it is for much better reasons precluded from using them to impeach the credit of its own witnesses. Nor indeed is that in any case the real object, though it may be plausibly advanced as the nominal object which the prosecution has in view, when it seeks this indulgence. For ex hypothesi, when a Crown witness has said nothing against the accused "no question in impeaching his credit properly arises.
The only person interested in shaking the credit of a witness is the person against whom he has said something. What has really happened is this. A witness, who has said things to the police, which the prosecution strongly relies on, refuses at the trial to repeat those things. The prosecution, pretending to wish to impeach his credit, then tries to bring on the record through the police officer, all that matter upon which it intended to rely, not of course to contradict the witness, but as substantive evidence.
It wants in other words to substitute for what the witness has said at the trial, what it believes he ought to have said. Apart then from the use to which Exhibit N was put on this occasion I go further, I think, than any of my learned colleagues and say that it ought not to have been admitted at all, or its contents to have been allowed to be used by the prosecution for the nominal purpose of contradicting Shankar."
Observations of Knox J. in Nasir-ud-din's case should also be borne in mind. He observed,2 such statements are recorded by police officers in the most haphazard manner. Officers conducting an investigation not unnaturally record what seems in their opinion material to the case at that stage and omit many matters equally material, and, it may be, of supreme importance as the case develops. Besides that, in most cases they are not experts of what is and what is not evidence. The statements are recorded often hurriedly in the midst of a crowd and confusion, subject to frequent interruption and suggestions from bystanders.
Over and above all, they cannot be in any sense termed depositions, for they are not prepared in the way of a deposition, they are not read over to, nor are they signed by, the deponents. There is no guarantee that they do not contain much more or much less than what the witness has said. The law has safeguarded the use of them, and it never can have been the intention of the Legislature that, as in this case, copies of them should have been without question and as a matter of course made over to the accused or their counsel.
"It is obvious that such statements, if used at all, should only be used after proper proof of them and of the circumstances under which they were recorded, and under the direct sanction of the presiding Judge."3
The observations of Knox J. were cited again in a Madras case.4
1. Emp. v. Narayan Raghunath Patki, 1907 ILR 32 Bom 110 (142, 143, 144).
2. Q.E. v. Nasir-ud-din, 1894 ILR 16 All 207 (208).
3. See also Isab, ILR 28 Cal 348.
4. Guruva Vannan (in re:), AIR 1942 Mad 385 (386) (Mockettand Horwill JJ.).
The object of the section was thus explained in a Supreme Court case-1
"(16) The object of the main section as the history of its legislation shows and the decided cases indicate is to impose a general bar against the use of statement made before the police and the enacting clause in clear terms says that no statement made by any person to a police officer or any record thereof, or any part of such statement or record shall be used for any purpose. The words are clear and unambiguous. The proviso engrafts an exception on the general prohibition and that is, the said statement in writing may be used to contradict a witness in the manner provided by section 145 of the Evidence Act.
We have already noticed from the history of the section that the enacting clause was mainly intended to protect the interests of accused.2 At the stage of investigation, statements of witnesses are taken in a haphazard manner. The police officer in the course of his investigation finds himself more often in the midst of an excited crowd and babel voices raised all round. In such an atmosphere, unlike that in a Court of Law, he is expected to bear the statements of witnesses and record separately the statement of each one of them. Generally he records only a summary of the statements which appear to him to be relevant.
These statements are, therefore, only a summary of what a witness says and very often perfunctory. Indeed, in view of the aforesaid facts, there is a statutory prohibition against police officers taking the signature of the person making the statement, indicating thereby that the statement is not intended to be binding on the witness or an assurance by him that it is a correct statement.
"(17) At the same time, it being the earliest record of statement of a witness soon after the incident, any contradiction found therein would be of immense help to an accused to discredit the testimony of a witness making the statement. The section was, therefore, conceived in an attempt to find a happy 'via media' namely while it enacts an absolute bar against the statement made before a police officer being used for any purpose whatsoever, it enables the accused to rely upon it for a "limited purpose of contradicting a witness in the manner provided by section 145 of the Evidence Act by drawing his attention to parts of the statement intended for contradiction.
It cannot be used for corroboration of a prosecution or a defence witness or even a Court witness. Nor can it be used for contradicting a defence or a Court witness. Shortly stated, there is a general bar against its use subject to a limited exception in the interest of the accused, and the exception cannot obviously be used to cross the bar."
Section 162 is designed to protect the accused against over zealous police officer and untruthful witnesses. It also recognises the danger of placing implicit confidence in a record made more or less imperfectly by a police officer who may not necessarily be competent to make an exactly correct record with due regard to the provisions of the law of evidence.3
It has been pointed out by Beaumont C.J.,4 that section 162 was intended to prevent user of statements made by the accused to the police, and questions designed to show, by process of elimination, that the matters subsequently mentioned by the accused were omitted from such statement, are within the mischief aimed at by the section.
The object of the section is (i) to protect accused persons from being prejudiced by a statement made to the police officer who, by reason of the fact that an investigation is known to be on foot at the time when the statement is made, may be in a position to influence the maker, and (ii) to protect the accused persons from prejudice at the hands of those who, knowing that an investigation has started already, are prepared to tell untruths.5
Section 162 renders the statements inadmissible for the obvious reason, that a suspicion about their voluntariness would attach to them.6
The section is designed to keep out evidence which, it is suggested, is not of a free and fair nature but may have been induced by some form of police duress.7
The very object of section 161 is to amend, for the purpose of criminal trials, certain sections in the Evidence Act which state what evidence is admissible and what is inadmissible.8
The whole object of section 162, Cr. P.C. and of section 25, Evidence Act, is to deprive the court of certain materials.
The section plainly constitutes an exception to the ordinary rules of evidence,9-10 so that corroboration of a witness by his statement recorded under section 162 is not permissible.11
It may also be noted, that section 173(4) as amended in 1955 does not give, to the accused, right to a copy of the statement of a person whom the prosecution does not propose to examine. Therefore, if the prosecution is given the right to contradict a defence witness, the defence would be taken by surprise, in cases where the copy was not given.
A reference may also be made to the speech of Sir Malcolm Hailey in the debate on the 1923 Bill, where he pointed out,12 that the statements under sections 161, 162 Cr. P.C. are recorded mainly for the assistance of superior officers in deciding on the necessity of and for guiding prosecution. It is true, (he stated) that the law, by a somewhat exceptional provision, allows the statement to be used for challenging the credibility of certain witnesses, but the primary object of recording a statement is not that they may be used as a species of evidence. They are primarily recorded for police purposes.
It will also have to be considered, that the defence cannot use these statement for corroboration. Would it be fair to permit the prosecution to contradict the defence witnesses when the defence cannot use them for corroboration ?
The rule in section 162 is the result of long experience. That which has been eliminated has been considered to be of such doubtful value as, on the whole, to be more likely to disguise truth than to discover it. It is, therefore, discarded for all purposes and in all circumstances. To introduce any further exception would be to destroy the whole object of the general rule.
Before the amendment of 1955, Beaman J. dealing with the question whether the proviso allowed the prosecution to impeach its own witnesses, observed,13 that it would work out to this-"that the prosecution would be empowered indirectly and under the presence of shaking the credit of its own witnesses, to substitute in the record, as evidence against the accused person, not what those witnesses have said on oath at the trial but what they have said or may have said in circumstances altogether unknown and uncontrolled, to its own police officers."
1. Tahsildar Singh v. State of Uttar Pradesh, 1959 (Supp) 2 SCR 875: AIR 1959 SC 1012 (1020, 1021, 1022, 1023), paras. 11, 16, 17, (object of section) and pp. 1018 (1019) (history).
2. Emphasis added.
3. Yusuf Ali v. State, AIR 1965 Bom 3 (5), para. 19 (Dealing with tape recorded statements) (Gokhale J.).
4. Issuf Mohamed v. Emp., AIR 1931 Bom 311 (312).
5. Emp. v. Aftab Mohd. Khan, AIR 1940 All 291 (299) (Collister and Braund JJ.).
6. Raja Ram v. State of Bihar, (1964) 2 SCR 752: AIR 1964 SC 828 (834).
7. Delbar Mandal v. Emp., 37 Cr LJ 1117 (1118): 40 CWN 733 (Cal).
8. Cf. Rankin J. in Sajjad Mirza v. Emp., AIR 1927 Cal 372.
9. Emp. v. Narayan, (1907) ILR 32 Bom 111 (142 to 144) (FB) (Beaman J.).
10. On this point, see Emp. v. Najibuddin, AIR 1933 Pat 589.
11. Rakha v. Crown, AIR 1925 Lah 399 (400) (section 157 of the Evidence Act is controlled by section 162).
12. Legislative Assembly Debates, Vol. III, No. 24 (26th January, 1923).
13. Emp. v. Narayan Raghunath Patki, (1907) ILR 32 Bom 111 (143) (FB).