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Report No. 41

48.3. Enactment new code recommended.-

It was observed by Sir James Stephen in 1872 when the Code was being first revised that constant revision and re-enactment was "as necessary as repairs are necessary to a railway. I do not think any Act of importance ought to last for more than ten or twelve years. At the end of that time it should be carefully examined from end to end, and whilst as much as possible of its general frame-work and arrangements are retained, it should be improved and corrected at every point at which experience has shown that it required improvement and correction."1

Seventy years have elapsed since the Code was last revised and re-enacted, and during this period it has been subjected to extensive amendments on several occasions. The charges recommended by us are both so substantial and numerous that "an Act further to amend the Code of Criminal Procedure, 1898", as the draftsman will crisply call the patchwork legislation, will not be satisfactory. We recommend that the Code should be replaced by a new Criminal Procedure Code, and annex a draft for the purpose.

K.V.K. Sundaram,

S.S. Dulat,

Mrs. Anna Chandi,

R.L. Narasimham,*

S. Balakrishnan,*

P.M. Bakshi,

New Delhi,

Dated: 24th September, 1969.

1. Gazette of India Supplement, May 4, 1872, p. 534. Quoted in the 14 Report, Vol. 2.

* Shri R.L. Narasimham and Shri S. Balakrishnan have signed the Report, subject to the note appended.

Note of Dissent Regarding The Proposed Amendments To Sections 161(3) And 162 Criminal Procedure Code By Members Shri R.L. Narasimham And Shri S. Balakrishnan

The existing provisions of section 162, Criminal Procedure Code have been universally condemned by the Police, the Bar, the Courts and the litigant-public. The need for making substantial changes in the law is accepted by all of us in the Commission but we two regret our inability to agree with the recommendations of the majority regarding the proposed amendments in sections 161(3) and 162. In our opinion, the proposed amendments do not solve any of the well-known difficulties and anomalies that exist at present. Nor do they deal with the root of the problem. On the contrary, the proposed amendments may create further difficulties and anomalies.

2. The fundamental anomaly in the existing provisions of section 162 is that though the statute prohibits the use of the statements made to the police during investigation for the purpose of corroboration (on the basic assumption that the police cannot be trusted in this regard and that being self-serving statements they cannot be relied upon), nevertheless permits their use for contradicting prosecution witnesses. Obviously, the earlier statement to the police should have been correctly recorded even for contradicting witnesses. If such statements can be considered to be correctly recorded for the limited purpose of contradicting the witness when he deposes in court, it seems to be wholly illogical to say that they cannot be relied upon as accurate for the purpose of corroboration. A record cannot at the same time be correct and incorrect.

3. The second anomaly is that the use of these statements for contradiction is permitted only for prosecution witnesses and not for defence witnesses. There is no basis for this differentiation. During police investigation no one can say whether a person examined by the police will eventually figure as a prosecution witness or a defence witness. If the statements made before the police by a person, who becomes a witness for the defence during the trial, cannot be relied upon to contradict him, it is difficult to understand how the same statement can be relied upon if the person is examined as a prosecution witness.

The majority opinion appears to be that it is not desirable to allow a witness to be contradicted by a record prepared by the opposite party. With great respect there appears to be an erroneous assumption that a witness questioned by the police could at that stage be categorised either as a witness for the prosecution or as a witness for the defence. Under section 161(1) the police may generally question all persons, who are supposed to be acquainted with the facts and circumstances of the case.

It will not be proper to assume that when a witness makes a statement to the police which is not favourable to the prosecution story as given in the F.I.R., the police, at the time of recording his statement would anticipate that he may become a defence witness during subsequent trial, and deliberately make an incorrect record with a view to discredit him when he becomes a defence witness. If the investigating police-officer's record cannot be trusted so far as this class of witnesses is concerned, how can it be trusted as regards the statements of the other class of witnesses?

4. Again there is considerable difference of opinion as to what is meant by "contradiction". The Supreme Court has no doubt settled that a "material omission" may amount to a contradiction, but there will always be controversy as to whether a particular omission is "material" or not. In our opinion, the occasion for the revision of the Code should be taken to remove all doubts on the matter. The recommendations of the majority would necessitate the continuance of the existing provisions and would, therefore, perpetuate the difficulties.

5. According to the recommendations of the majority, section 161(3) is proposed to be amended so as to permit a literate witness to sign his statement as recorded by the police.

The existing prohibition in section 162 against the police taking the signature of any person examined by them is proposed to be deleted. In our opinion, this would make matters much worse than at present. With the removal of the statutory ban on the police to get the signatures of witnesses, there is nothing to prevent the police from compelling a witness, either literate or illiterate, to sign or to give his thumb impression on what purports to be the statement of the witness. A signed statement will certainly discourage even a truthful witness from departing from it even if he wishes to tell the truth before the court. At present he can at least say that what is recorded by the police is not what he stated. But if he were to sign the statement, this stand would be very difficult for him to take and he has to sacrifice truth at the alter of consistency.

6. We are, therefore, of opinion that the recommendations of the majority would not improve matters and we, therefore, have an alternative suggestion in this regard, which is explained fully in the succeeding paragraphs.

7. At the outset it is desirable to refer to some sections of the Indian Evidence Act which have a bearing on police investigation. Section 157 of that Act enables a party to corroborate the testimony of its witness by proof of a former statement made by him before an officer authorised to investigate a fact. Section 145 read with section 155(3) of that Act enables the adverse party to discredit that witness by proof of previous statements inconsistent with his deposition in court. These provisions have been made with a view to ensure fair tria.-fair both for the party producing that witness and for the adverse party.

In a criminal case the prosecution is, therefore, entitled to show that the version as put forward by a witness before the court is not a belated version but that it was put forward at the earliest opportunity during investigation. Similarly, the defence is entitled to bring out contradictions between the deposition of that witness in Court and his earlier statements for the purpose of discrediting him. These two rights of the rival parties should be carefully borne in mind by the authorities engaged in revising Chapter XIV of the Criminal Procedure Code.

It is true that the Legislature can take away or abridge these rights conferred by the Evidence Act but as the primary objective of a Criminal Procedure Code in any country (where the rule of law prevails) is to ensure fair trial of an accused, it is clear that nothing in the Criminal Procedure Code should substantially take away or abridge these rights.. For the proper exercise of these rights it is essential that the earlier statement of a witness should be recorded accurately. The agency employed for the purpose and the mode of recording the same should be such as to ensure the accuracy of record.

8. A word of caution is necessary at this stage. Merely by providing for an accurate record of the earlier statement of a witness the framers of the Code cannot obviously guarantee its truth. A witness may consistently perjure on oath whereas a truthful witness may make inconsistent statements on two occasions, but when an opportunity is given, he may be able to explain the inconsistency to the satisfaction of the Court. The truth or otherwise of the statement of a witness will have to be judged by the Court concerned not only on the basis of his consistency, or contradictions, but also on other considerations such as the inherent improbability of the story, the divergent versions put forward by different witnesses, the interestedness or enmity of the deponent and such other factors. It is not the function of the framers of the Code to deal with these in the Code. They must be left to be decided by the Court in each case.

9. For the same reason, it is not the function of the framers of the Code to provide for complete elimination of all influences when a witness makes his statement on oath. It may be that his earlier statement during police investigation is made under police influence, or else it may be given voluntarily or under the influence of the informant's party. Similarly, his subsequent deposition in Court may be made when the influence mentioned in the proceeding sentence continues to persist, or else it may be made under the influence of the accused who has gained him over to his side. These again are matters for the Court to consider while judging about the credibility of the witness. The revision of the Criminal Procedure Code should not be mixed up with these irrelevant considerations which tend to confuse the real issues.

10. It is true that confessions made under police influence are held to be inadmissible in law but the Criminal Procedure Code while providing for the record of a confession in section 164 has made adequate provisions for removal of such influence. The Evidence Act nowhere says that the statement of a witness is inadmissible in law merely because it is made either under the influence of the police or of the informant or of the accused and hence these matters should be ignored while revising the Code for this purpose.

11. Police investigation under Chapter XIV may be broadly divided into the following two aspects:

(a) tracing out of the culprit and the collection of materials to be used against him during trial; and

(b) preparation of a record during investigation which will be of aid or assistance during trial.

12. Under the first will come the F.I.R., the tracing out and questioning of the witnesses whose statements would lead to the detection of the criminal, the search and recovery of incriminatory articles and the preparation of the search list etc. Under the second will come the facts observed by the police officer at the spot during investigation, the work done by him every day including the dates on which the various witnesses were examined by him and a summary of their statements made to him. The F.I.R. is admissible as corroborative evidence under section 157 of the Evidence Act when the informant comes to Court and repeats the version given in the F.I.R. It may also be used by the adverse party to contradict him if there is a material discrepancy.

Similarly, the search list is admissible in Court as corroborative evidence if the officer conducting the search comes forward as a witness and proves the search and recovery of the incriminating articles. These two documents, namely, the F.I.R. and the search list, are prepared by the investigating police officer but the Code contains adequate safeguards to ensure their accuracy. Thus section 154 requires the F.I.R. to be recorded verbatim in the very language of the informant (as far as possible), to be read over and explained to him and to be signed by him. In some States the Police Manual further requires the Investigating Officer to get the F.I.R. attested by some respectable witnesses who may be present at the time of the lodging of the F.I.R.

Section 157(1) further requires the I.O. to send the F.I.R. at once to the Magistrate taking cognizance on police report. Hence, though subsequent interpolations in the F.I.R. are not unknown, nevertheless the aforesaid provisions, to a large extent, ensure their accuracy. Similarly, the search list is required to be prepared in the presence of two respectable witnesses who are required to attest the same. A copy of it must be sent forthwith to the nearest Magistrate taking cognizance on police report and the occupier of the house searched is required to be given a copy of the same [section 165(4) read with sub-sections (3) and (4) of section 1031.

13. The most unsatisfactory section in Chapter XIV is section 162. The I.O. is authorised to record the statement of a witness without even disclosing to the witness what he has written. The witness is not required to sign the same nor is a copy required to be sent to the nearest Magistrate with a view to prevent interpolation. In consequence, there is no guarantee of the accuracy of the record of the statement of a witness as made by the I.O. It is a notorious fact (which has been admitted by almost all the persons examined by us) that the statement of a witness recorded under sections 161 and 162 is not necessarily what the witness actually said but is a record of what the I.O. wants the witness to say.

Indeed, cases were brought to our notice in which so called statements were recorded without examining the witness at all. The I.O. is enabled to do so by the language of the section. Moreover, while such statement is considered unreliable for the purposes of corroboration, it suddenly becomes and is treated as reliable for the purpose of contradiction! Even if a witness speaks the truth before the court, his evidence becomes unworthy of credence if what he says in court contradicts what the police officer chose to record as a so-called statement.

14. There is a well recognised charge that the non-gazetted police staff is generally corrupt. To quote the Report of the Delhi Police Commission, 1966-68, Vol. I, at page 490.-

"Corruption to a large extent is to be found among the non-gazetted staff of the Delhi Police. Among the higher staff there is lack of proper supervision, control and discipline. To this must be added the distressing fact, that though the improbity of the subordinate police and the misdemeanours committed by the lower ranks. are fully within the knowledge of the senior officers of the department, no really effective or determined effort to eradicate this evil is being made."

The Police Commissions of other States also have observed on similar lines. But strangely enough the definition of an "officer incharge" of the police station in the Criminal Procedure Code refers to the Sub-Inspector of Police and his subordinates who are all non-gazetted police officers. Thus, under the existing provision of the Code, the preparation of the earliest record of the statement of a witness is left in the hands of an agency whose integrity is highly doubtful and the mode of recording as provided in section 162 does not ensure the accuracy of the record. It is well known that many good cases are spoilt by the insidious incorrect entries made in the diary by the I.O. at the instance of the accused and it is also well known that many innocent persons are sent up along with the guilty of the I.O. is gained over by the informant's party.

15. In Western Europe it is generally considered an essential guarantee of the impartiality of the preliminary investigation that it be conducted independently of the prosecuting arm and subject to the control of the courts. This means that the French judge d' instruction or the German Untersuchungsrichter is (theoretically, at least) not subject to the influence of the prosecuting arm in determining whether or not to indict; it also means that any abuses of the rights of the accused by the judge d' instruction or Untersuchungarichter may be appealed to the courts. (See Soviet Criminal Law and Procedure by Harold J. Berman, p. 75).

In Russia, however, investigation is controlled not by the judiciary but by a quasi-judicial independent body under the control of the Procurator-General and his subordinate staff who are also independent of the executive. In India, at present,lt may not be practicable to adopt wholly either the French or the German system or the Russian system of controlling investigation. Nevertheless, an important step towards effective control of investigation may be made if the preparation of the record of the statement of witnesses during investigation is taken out of the police and entrusted with the Magistracy.

16. In our opinion the most satisfactory solution for the present difficulties and anamolies would be to amend section 164 so as to make it mandatory for the I.O. to send to the nearest Magistrate all material witnesses questioned by him during the course of investigation and have their statements recorded on oath by that magistrate. If the Magistrate is the Magistrate taking cognizance on police report he will keep the depositions along with the F.I.R. [which must have been received by him under section 157(1)1 and await further report from the I.O. such as charge-sheet or final report under section 173. He should also be required to grant copies of the depositions to the I.O. (so that his papers may be complete) and also to deponents and other parties who may ask for the same.

If, however, he is not the Magistrate taking cognizance on police report but some other Magistrate, he should be required to send the depositions after record to the former Magistrate for further action. The necessity for making this provision arises because some of the places of the commission of crime though somewhat distant from the place where the Magistrate taking cognizance on police report is stationed, may be more proximate to another Magistrate stationed close by. The witness should not be harassed by being required to proceed to a longer distance than is absolutely necessary.

With quick means of transport available nowadays, it will be practicable to produce the witness before the Magistrate within a day or two after their questioning by the police so that the record of the statement under section 164 may be made at the earliest opportunity. It will be a statement made on oath in open court recorded by the Magistrate in his own hand, read over and explained to the witness and after having been admitted as correct, signed by him. Its accuracy therefore will be beyond question.

17. There can really be no objection to this suggestion on principle because section 164 even now enables the recording of statements of witnesses by a Magistrate during investigation. All that we suggest is that the provisions of this section should be resorted to in respect of all material witnesses instead of leaving it to the sweet will of the police to choose the witnesses who should be examined under section 164.

18. It may, however, be urged that instead of sending the witnesses to the nearest Magistrate if section 162 is amended and the language of section 154 is adopted, accuracy of the record may be ensured. But, the number of witnesses examined during investigation of a case is sufficiently large and if in respect of every such witness the I.O. is required to record his statement in his own language it over and explain it to him and obtain his signature and if possible to get the same attested by two witnesses, considerable time will be taken by the I.O. for this purpose and to some extent investigation will be hampered. Moreover, the record by the I.O. is not made in public as is done by a Magistrate and there will always be reasonable grounds to suspect that the record as prepared by him is not a true record especially where the witnesses are illiterate.

An alternative suggestion has been made that a gazetted police officer may be required to record the statements of witnesses during investigation. It is true that the gazetted police officers' reputation for integrity is much higher than that of the non¬gazetted staff but we consider that it is much better to have the statements recorded by Magistrates as this will ensure greater confidence in the public. The statements before the Magistrate are made on oath and they are recorded in open court whereas even before gazetted police officers these salutary checks will be lacking.

19. One of the distinct advantages of our recommendation is that a person accusing another person of the commission of a cognizable offence is required to make his statement on oath in public. It is on his statement along with other materials collected by the police during investigation that the latter person is placed on trial. Under modern conditions the mere placing on trial of a person on a criminal charge causes great harassment, mental agony, loss of reputation and heavy expenditure to that person.

His subsequent acquittal after trial is not sufficient consolation or adequate compensation for the trouble and expenditure to which he is put in defending himself. It is, we think very unfair that a person should be put in jeopardy of his liberty by having to face a trial unless his accuser is prepared to incriminate him on oath in public. At present enemies of an innocent person may give his name along with the names of the guilty to the police during investigation and their statements will be recorded confidentially by the police under section 162.

If they can induce the police to believe their statements, that innocent person also will have to face trial. Thus the existing provisions of the Code encourage the placing on trial of a person on mere confidential information given to the police by persons who at that stage are not required to make their accusation on oath. This type of harassment of a person on the basis of confidential information is in the nature of a stab in the back and should be avoided.

20. It is true that the investigation and the tracing out of a culprit should be facilitated and the sources of information given to the police should not be disclosed as otherwise many crimes cannot be detected. But it is also necessary that until the culprit is traced out and accused of the commission of an offence his accuser must be prepared to say so before a Magistrate prior to his being placed on trial to prevent irresponsible statements to the Police.

21. This principle has been recognised in the Code in respect of a non-cognisable offence. On a mere complaint of an non-cognisable offence, the Magistrate will not summon the accused. Under section 200 the complainant is required to substantiate his statement on oath. The witnesses, if any, brought by him to the Magistrate are required to be examined on oath. Even thereafter if the Magistrate entertains some doubt, a judicial enquiry is made under section 202 where other witnesses of the complainant are examined on oath. It is only then that the accused is summoned to face a trial.

Thus, when for a minor non-cognisable offence the Code requires the accuser to make his statement on oath before the accused is placed on trial, it seems grossly unfair that for serious cognisable offences a person should be asked to face a trial on the basis of confidential information given to the police during investigation. This inconsistency will be removed if our suggestion is accepted.

22. We may now refer to possible criticism against the suggestion and meet them. Firstly, it may be urged that during investigation it will be very difficult to know who are the material witnesses and the I.O. will have to be given wide discretion in picking out and choosing those persons who should be sent to the Magistrate under section 164. By "material witnesses" is meant those witnesses who either by direct evidence or circumstantial evidence incriminate an accused.

They need not necessarily be eye¬witnesses to the actual commission of the crime. We agree that some discretion would necessarily remain with the 1.0., but, with a view to prevent the I.O. from deliberately withholding those witnesses who may not support his view of the prosecution case, provision may be made in section 164 to enable anyone, other than those sent up by the I.O., to appear, of his own accord, before the Magistrate and state on oath what he knows about the crime and the offender. Secondly, if may be urged that by requiring the witness to make his statement on oath at the time when he is under police influence his mouth is, as it were, sealed and if the earlier statement is an untrue statement made under police influence, he will find it difficult to speak out the truth during the trial because of the threat of prosecution for penury.

This argument assumes that a statement on oath made while under police influence is untrue and that the subsequent deposition of the witness in Court is true. Such an assumption is not wholly justified. In a large number of instances the earliest statement of a witness whether under police influence or otherwise is true and his subsequent deposition in Court is untrue having been brought about by the influence of the accused. In any case, the question whether the first or the second statement is the correct one, should be decided by the Court. If in some of the cases the trying court finds that the earlier statement is an untrue statement made under police influence it will refuse to prosecute him for perjury.

These questions must be left for the consideration of the trying court and should not weigh with the framers of the Code. Thirdly, it may be urged that the witnesses who are taken to a Magistrate for recording their statements would be overawed by the police and compelled to say that the police want them to say. Our attention was also drawn to the observations of the Supreme Court on the need to exercise utmost caution in using statements under section 164. We are quite alive to all these but would point out that even now section 164 is there on the statute book and no one has suggested Its deletion on the (grounds stated above. Further, we are not for a moment suggesting that the statement under section 164 would have any more probative value than what it has today.

23. Fourthly, it may be urged that investigation will be very much hampered if the Investigating Police Officer is required to take the material witness every time to the nearest Magistrate for recording his statement under section 164. This objection seems to have weighed to some extent with the majority of our colleagues. With great respect, however, we would point out that it is not always necessary for the Investigating Police Officer to personally escort the material witnesses to the nearest Magistrate and thereby interrupt his investigation. It is sufficient if he either directs them to appear before the Magistrate or gives them assistance such as Police escort and reasonable expenses so that they may arrive at the Court of the Magistrate as soon as possible.

He may send a confidential note to the Assistant Public Prosecutor or Police Prosecuting Agency who are nowadays stationed in all courts so that during examination of these witnesses under section 164 they may be questioned by such an agency while their statement is being recorded by the Magistrate. With a view to compel these witnesses to appear before the Magistrate under section 164 provision may be made in that section on lines similar to section 160 requiring their appearance before the Magistrate if so intimated by the I.O. Provision may be made for the payment of his reasonable expenses including transport charges.

24. The other objections against the aforesaid suggestion are all of an administrative nature. Difficulties of transport, cost of bringing the witnesses to the Magistrate's Court, the extra labour that will have to be put in by the Magistrate, are all referred to. But, in our opinion, these difficulties are not insurmountable and they should not, stand in the way of the Code fulfilling one of the essential requirenients of a fair trial, namely, the preparation of an accurate record of the earliest statement of a witness. It is true that in one sense the record of the statement made under section 164 is not the earliest statement of a witness, that statement having been made earlier before the Investigating Police Officer.

But the interval between the two statements will not exceed a day or two in a large number of instances as pointed out in paragraph 16. The statement recorded by the police should be made wholly inadmissible for any purposes of the Code and hence the earliest statement for the purposes of the Code may be held to be the statement recorded under section 164.

25. To sum up, the main advantages of our recommendations are:

i. An accurate record of the earliest statement of a witness is made avoidable for both the prosecution and the defence.

ii. A person who makes a statement accusing anybody of the commission of a cognisable offence is required to make his accusation on oath in public. This prevents stabbing people in the dark as is now possible.

iii. By making a statement on oath at the earliest opportunity the witness is put under some check with a view to discourage him from making a different statement on oath during trial under the influence of the accused. It is true that there are some hardened perjurers whom no threat of perjury would deter a larger number of witnesses having made statements on oath would not agree to go back on those statements at the instance of the accused. It is not unlikely that the police may welcome such a suggestion. Allegations that diaries are manipulated, that the police-officer writes what he wants to write in the diary etc.

will no longer be made and the police will be free to complete the investigation and decide on submitting final report or charge-sheet on the basis of the statements on oath made by witnesses and other facts and circumstances such as recovery of incriminating articles, facts observed during local inspection, presence of injury on the accused and other corroborative pieces of evidence.

26. We shall now briefly mention the various sections of Chapter XIV which will have to be amended for implementing the suggestion:

(1) In section 161, sub-section (3) should be omitted.

(2) Section 162 should be recast by omitting the proviso to sub-section (1). Sub-section (2) should be retained:

Note.- This exception in favour of dying declarations and section 27 of the Evidence Act is by way of necessity.

(3) Section 164 should be re-cast so as to make it obligatory for the Investigating Police Officer to send up to the Magistrate all material witnesses examined by him during investigation. Provision should also be made requiring those witnesses if summoned by the I.O. to appear before the Magistrate mentioned in the Notice. There will also be a further provision to the effect that apart from witnesses either sent up or summoned to appear before the Magistrate, any person will be entitled to appear before the Magistrate, and make his own statement as regards the offence under investigation and the identity of the culprit.

(4) If the Magistrate is the Magistrate taking cognisance on police report of the offence under investigation, he should after recording the statements of the witnesses on oath send copies of the same to the investigating police-officer and also grant copies to the deponent and other persons who may ask for the same. He should keep the original depositions along with the original F.I.R. sent to him under section 157(1). If, however, he is not the Magistrate taking cognisance on police report in respect of the offence under investigation, he should, after recording the statements, forward the same to that Magistrate.

(5) In section 172 it should be expressly provided that the statements of witnesses if recorded by the police during investigation shall not form part of the diary mentioned in this section and no court or any party will be entitled to call for the same. That record must remain a confidential paper accessible only to the superior police-officers who may supervise the investigation made by the I.O. and also to the Police Prosecutors and the A.P.Ps and P.Ps., if they so desire.

(6) Consequential amendment should be made to sub-section (4) of section 173. As all material papers will be with the Magistrate taking cognizance on police report, the duty of granting copies must be left with him and not with the I.O.

27. Many other sections of the Code may have to be amended as a consequential step but it is not necessary to refer to them in this Note.

R.L. Narasimham

S. Balakrishnan

Code of Criminal Procedure, 1898 Back

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