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Report No. 41

14.11. Section 162(1.- statement to be signed by literate witness.-

Section 162(1) first lays down the prohibition that "no statement made by any person to a polic.-officer in the course of an investigation under this Chapter shall, if reduced into writing, be signed by the person making it." In the 14th Report1, the Law Commission recommended that literate witnesses should be required to sign their statements. In the 37th Report2, the Commission did not favour such a change. We feel, as did the earlier Law Commission, that such a provision would be a step in the right direction. There is no reason why a witness able to read the record of his statement should not sign it in token of its accuracy and we recommend, therefore, that a witness who can read his statement as recorded by the police should be required to sign it.

1. 14th Report, Vol. 2.

2. 37th Report, para. 437(c).

14.12. Section 162(1).- use of statements in evidence.-

The second part of section 162(1) is controversial and has been so for a long time1. It provides that no statement of a witness to the police, or any record thereof whether in a polic.-diary or otherwise, or any part of such statement or record, shall be used for any purpose (save as hereinafter provided) at any inquiry or trial in respect of the offence under investigation, but when that witness is called for the prosecution in such inquiry or trial, any part of the statement if duly proved, may be used by the accused, and with the permission of the Court, by the prosecution, to contradict such witness in the manner provided by section 145 of the Indian Evidence Act, 1872.

It is this provision that is freely used during criminal trials. A prosecution witness is confronted with his police statement and if the two are contradictory, the witness is discredited unless the contradiction is explained. In principle, the procedure is sound. We have, however, heard complaints that the police record of a witness's statement is often inaccurate and that a dishonest polic.-officer can write anything he likes. The real remedy for that, we think, lies in improving the caliber of the investigating officer. We have lbeard it said that subordinate polic.-officers who investigate most of the cases are universally corrupt, and there is little chance of improving them in this respect.

A suggestion has even been made that the police should be relieved of the task of investigation which should be entrusted to some other agency2. We can find nothing practical about this suggestion. Any agency working under conditions similar to the police will be subject to the same temptations and will develop the same weaknesses. Nor need we despair of any improvement in the police force. We should, on the other hand, hope that with advance of literacy and improvement in the general standard of living, a public opinion will be created wholly intolerant of corruption, and with improvement in the working conditions of the subordinate police, corruption will gradually disappear.

1. See 37th Report, Appendix 11 which traces history of section 162.

2. The suggestion was put forth before us during our consideration of the subject by one of the Members.

14.13. Suggestions regarding section 162 considered.-

Except for the purpose mentioned in the proviso, section 162(1) prohibits the use of a statement made to the police during investigation. Two rival suggestions have been made in this connection. One is that the ban imposed by section 162 should be removed and the police record made available for all purposes, subject to the rules in the Evidence Act. In other words, the suggestion is that the statement should be available not only for contradicting the witness, but also for corroborating him1. The rival suggestion is that statements to the police should be totally unusable for any purpose and the proviso to section 162 should be deleted2.

It seems to us that there are serious difficulties in the way of accepting either suggestion and neither offers any substantial improvement in the existing situation. A total ban on the use of police statements would deprive the defence of an opportunity to discover what a particular witness said at the earliest opportunity. To get over the difficulty, it is suggested that the statement of every "material witness" should be recorded by a Magistrate under section 164, and that this statement would be available to the prosecution as well as defence.

It is clear, however, that the statement before a Magistrate would not be the earliest statement, but made some time after the witness had been examined by, and made a statement to, the police. The time lag between the two statements may sometimes be considerable and is liable to be used for improving upon the first statement. It seems to us that the statement under section 164 would not be a good substitute for the statement before the police.

Secondly, the practical difficulties of getting the statement of every material witness recorded by a Magistrate would be considerable. A polic.-officer would have to interrupt his investigation every time he came across a material witness in order to take him to a magistrate; or else, he would have to wait till the end of the investigation and produce all the material witnesses before a magistrate, possibly several days after some of the witnesses actually appeared before the police. Neither situation strikes us as satisfactory. Our courts have steadily discouraged the use of section 164 for recording statements of some witnesses during investigation. We doubt if, by making its use compulsory in all cases or in a certain class o.-cases, we would be making any improvement.

The alternative suggestion seems, at first sight, less difficult. Police statements are, at present, available for contradicting a witness, and to make them available for corroborating the same witness seems merely to complete the picture.

Actually, however, there is a material difference between contradiction and corroboration; and what is good enough for contradicting a witness is not always good enough for corroborating him. It is obvious that if a witness says one thing at one time and another at another time, it is prima facie good ground for distrusting him; but if a witness says the same thing every time he is questioned, the reason for trusting him is not so obvious: many liars are consistent. The policy of law in permitting a witness to be contradicted by a police statement and not permitting him to be corroborated by the same statement is basically sound and sensible. On the other hand, there seems to be considerable risk (in the existing circumstances) in extending the scope of the proviso along the suggested lines.

We are, therefore, not attracted by either proposal; and, apart from the change we have suggested above in regard to the first part of section 162(1), we are content, like the previous Law Commission3, to leave the substance of the second part and proviso unchanged4.

1. Seminar on Criminal Law and Contemporary Social Changes (8th to 10th May, 196.-New Delhi) Report of Study Group D.

2. This is linked with the suggestion that the statements should be recorded under section 164. See note appended to this Report.

3. Cf. 37th Report, discussion as to section 162.

4. Two of us Shri R.L. Narasimham and Shri S. Balakrishnan, do not agree with this view. Their suggestions for amending Chapter XIV of the Code are set out in a Note appended to this Report.

14.14. Section 162(1.- Contradiction by prosecution of its own witness.-

Before 1955, the statement of a witness to the police could be used for contradicting him only by the defence and only if he appeared for the prosecution. The section was amended in 1955 by adding that a witness appearing for the prosecution could also be confronted with his statement to the police at the instance of the prosecution, but only with the permission of the Court. The intention is that, if a prosecution witness is won over by the other side, it can be shown that he is not trustworthy as he had earlier made a different statement. In the Fourteenth Report1, the Law Commission commented on this change and said that it could not serve any useful purpose. The Commission, however, did not then recommend any change, and we too are not recommending any change.

We have also considered another suggestion.2 that a defence witness should be allowed to be contradicted by his statement to the police. With respect, we do not think it would be desirable to allow a witness to be contradicted by a record prepared by the opposite party. The Commission took the same view in the earlier Report3.

1. See observations in Laxman v. Kalu, AIR 1968 SC 1390.

2. 14th Report, Vol. 2.

3. 37th Report, paras. 450 and 451 and Appendix 12.

14.15. In the light of the above discussion, we propose that section 161(3) and the main paragraph of section 162(1) be amended as follows.-

"161. (3) The polic.-officer may reduce into writing any statement made to him in the course of an examination under this section; and if he does so, he shall make a separate and true record of the statement of each such person whose statement he records, and where the person can read the statement so recorded, obtain his signature thereon after he has read it.

162. (1) No statement made by any person to a polic.-officer in the course of an investigation under this Chapter,... no record thereof, whether in a police diary or otherwise, and no part of such statement or record, shall be used for any purpose, save as hereinafter provided, at any inquiry or trial in respect of any offence under investigation at the time when such statement was made."

14.16. Section 163.-

Section 163(1) contains a direction to police officers and other persons in authority not to offer any such inducement, threat or promise as is mentioned in section 24 of the Evidence Act. Su.-section (2) then says that such persons in authority need not by any caution or otherwise prevent any voluntary statement being made by any person, implying that a caution is not necessary to a person making a confession.

Then comes section 164 which mentions the elaborate precautions that should be taken by a magistrate before recording a confession and that includes a caution and a warning. It has been judicially observed that the provisions in section 163(2) and section 164(3) are not in harmony. In the earlier Report,1 the Commission had consequently recommended that it should be made clear that section 164 ove.-rides this implication of section 163(2). We agree and propose that the following proviso should be added to section 163(2.-

"Provided that nothing in this su.-section shall affect the provisions of su.-section (3) of section 164."

1. 37th Report, para. 460.

14.17. Section 164.-

Under section 164(1) at present, any Presidency Magistrate or Magistrate of the first class and any Magistrate of the second class empowered by the State Government is competent to record confessions and statements during investigation. We agree with the recommendation in the earlier Report1 that only Judicial Magistrates should have these powers. We think, however, that after separation of the judiciary all second class magistrates could be trusted to exercise their powers and no special empowerment by the State Government or by the High Court would be necessary.

The earlier Report2 considered the Question whether statements recorded under section 164 should be on oath or not and recommended that they should be. The actual practice, we understand, varies; but it would certainly be proper if such statements were always made on oath and this should be expressly provided in the section itself.

By way of drafting improvement, we propose a r.-arrangement of the provisions put together in su.-sections (2) and (3) of section 164. The section may be revised to read as follows.-

"164. Recording of confessions and statements.- (1) Any Metropolitan Magistrate or Judicial Magistrate may, whether or not he has jurisdiction in the case, record any confession or statement made to him in the course of an investigation under this Chapter or under any other law for the time being in force, or at any time afterwards before the commencement of the inquiry or trial.

(2) The Magistrate shall, before recording any such confession, explain to the person making it that he is not bound to make a confession and that, if he does so, it may be used as evidence against him; and the Magistrate shall not record any such confession unless, upon questioning the person making it, he has reason to believe that it is being made voluntarily.

(3) Any such confession shall be recorded in the manner provided in section 364 for recording the examination of an accused person and shall be signed by the person making the confession; and the Magistrate shall make a memorandum at the foot of such record to the following effect.-

'I have explained to (name) that he is not bound to make a confession and that, if he does so, any confession he may make may be used as evidence against him and I believe that this confession was voluntarily made. It was taken in my presence and hearing, and was read over to the person making it and admitted by him to be correct, and it contains a full and true account of the statement made by him.

(Signed) A.B.

(4) The Magistrate recording a confession or statement under this section shall forward it to the Magistrate by whom the case is to be inquired into or tried.

(5) A Magistrate recording a statement under this section shall do so in such of the manners hereinafter prescribed for recording evidence as is, in his opinion, best fitted for the circumstances of the case, and shall have power to administer oath to the witness whose statement is recorded."

14.18. Sections 165 and 166.-

When a police officer decides to search a place during investigation, he has to record his reasons; and if any articles are seized, he must prepare a list. Copies of the records thus prepared have to be sent to a magistrate at once, and su.-section (5) of section 165 further provides that the "owner or occupier of the place searched shall on application be furnished with a copy" of the same by the magistrate. The cost of the copies is to be ordinarily paid by the owner or the occupier. We agree with the recommendation in the earlier Report1 that such copies should be furnished free of cost and propose that in section 165(5) and in section 166(5), after the word "furnished", the words "free of cost" be inserted.

1. 37th Report, para. 473 and 476

14.19. Section 167.-

Section 167 provides for remands. The total period for which an arrested person may be remanded to custod.-police or judicia.-is 15 days. The assumption is that the investigation must be completed within 15 days, and the final report under section 173 sent to court by then. In actual practice, however, this has frequently been found unworkable. Quite often, a complicated investigation cannot be completed within 15 days, and if the offence is serious, the police naturally insist that the accused be kept in custody. A practice of doubtful legal validity has therefore grown up.

The police file before a Magistrate a preliminary or "incomplete" report, and the Magistrate, purporting to act under section 344, adjourns the proceedings and remands the accused to custody. In the Fourteenth Report,1 the Law Commission doubted if such an order could be made under section 344, as that section is intended to operate only after a Magistrate has taken cognizance of an offence, which can be properly done only after a final report under section 173 has been received, and not while the investigation is still proceeding. We are of the same view, and to us also it appears proper that the law should be clarified in this respect.

The use of section 344 for a remand beyond the statutory period fixed under section 167 can lead to serious abuse, as an arrested person can in this manner be kept in custody indefinitely while the investigation can go on in a leisurely manner. It is, therefore, desirable, as was observed in the Fourteenth Report, that some time limit should be placed on the power of the police to obtain a remand, while the investigation is still going on; and if the present time limit of 15 days is too short, it would be better to fix a longer period rather than countenance a practice which violates the spirit of the legal safeguard.

Like the earlier Law Commission, we feel that 15 days is perhaps too short, and we propose therefore to follow the recommendation in the Fourteenth Report that the maximum period under section 167 should be fixed at 60 days. We are aware of the danger that such an extension may result in the maximum period becoming the rule in every case as a matter of routine2; but we trust that proper supervision by the superior courts will prevent that. We propose accordingly to revise su.-sections (2) and (4) of section 167 as follows.-

"(2) The Magistrate to whom an accused person is forwarded under this section may, whether he has or has not jurisdiction to try the case, from time to time authorise the detention of the accused in such custody as such Magistrate thinks fit, for a term not exceeding fifteen days at a time and sixty days in the whole. If he has no jurisdiction to try the case or commit it for trial, and considers further detention unnecessary, he may order the accused to be forwarded to a Magistrate having such jurisdiction:

Provided tha.-

(a) no Magistrate shall authorise detention in any custody under this section unless the accused is produced before him;

(b) no Magistrate of the second class not specially empowered in this behalf by the High Court shall authorise detention in the custody of the police.

(4) Any Magistrate other than the Chief Judicial Magistrate making such order shall forward a copy of his order, with his reasons for making it, to the Chief Judicial Magistrate."

1. 14th Report, Vol. 2.

2. Cf. 37th Report, paras. 477, 478.

14.20. Sections 168 to 172.-

The Thirt.-seventh Report1 did not propose any material alteration in sections 168 to 172; nor do we. Only one suggestion needs to be noticed2. It is that the police diaries which under section 172 a court can send for and look at should be open to inspection by an accused person. We are unable to accept the suggestion, as it would deter informers conveying information to the police and hamper speedy investigation. It is clear that under the law, as it is, all relevant statements recorded by the police are handed over to the accused, and nothing else is necessary.

1. See 37th Report, paras. 477, 478.

2. Suggestion considered and not accepted in 37th Report, paras. 492 to 497.

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