Report No. 185

VII. Section 27 is an exception to section 162 Cr.P.C.: (historical facts):

Section 161 of the Code of 1898 corresponds to section 161 of the Code of 1973 and section 162 of that Code corresponds to section 162 of the new Code, with minor changes.

section 161(1) of the Cr.P.C. 1973 permits police to examine any person supposed to be acquainted with the facts and circumstances of the case and section 161(2) says 'such person shall be bound to answer truly', all questions relating to such case. "other than questions the answers to which would have a tendency to expose him to a criminal charge or to penalty or forfeiture". section 161(3) states that a police officer may "reduce into writing any statement made to him in the course of an examination under this section; and if he sectionso, he shall make a separate and true record of the statement of each such person whose statement he records". The words 'any person' in section 161(1) include accused persons too or persons who become accused ultimately. If it is the accused, he has a right to silence.

A statement made under section 161 of the Code of 1973 cannot be used as substantive evidence but can only be used for the purpose of contradicting the evidence of a prosecution witness. It cannot be used for corroborating the evidence of a prosecution witness.

Section 162(1) of the new Code as it stands stipulates that the statement shall not be signed. Of course, in the 154th and 177th Reports of the Commission have suggested signatures or the thumb impression of the person to be taken but that will not make the statements admissible. section 162(1) says that such statement shall not be used for any purpose, save as provided "hereinafter".

The proviso to section 162 permits use of the statement for purposes of section 145 of the Evidence Act, while section 162(2) gives overriding effect to section 27. We shall refer to the previous history of section 162 under the old Code of 1898.

Before the amendment of 1941 to section 162(2) of the Cr.P.C., 1898, a view was expressed by some High Courts that section 162(1) applies to statements by persons other than accused while section 27 relates to statements by accused. Some other High Courts took the opposite view that section 162(1) applies also to statements of accused.

The Privy Council in Pakala Narayanswami v. R AIR 1939 PC 47 accepted the latter view. After that, some High Courts held that section 27 being a 'special law' was not affected by section 162 CrPC while a contrary view was taken in some other High Courts. The legislature intervened by Act 15 of 1941 and added the words 'or to affect the provisions of section 27 of that Act, thus allowing section 27 to override the prohibition in section 162(1) in so far as 'facts discovered' are concerned.

Section 162(1) of the Criminal Procedure Code, 1898, was identical with section 162(1) of the present Act and contained two provisos, the first one corresponding to the present proviso referring to section 145 Evidence Act. The second proviso gave the court discretion to exclude from the copy of the statement given to the accused, any part of the disclosure which was not essential in the interests of the justice. Subsection (2) of section 161 as it was before the amendment of 1941, permitted the statements, if they fell under section 32(1) of the Evidence Act, to be used.

It was only in 1941 that the words 'or to affect the provisions of section 27 of that Act' were introduced in section 162(2). Present section 162(2) accepts and permits use of the statements under section 32(1) as well as section 27. Present Explanation to section 162 permits 'omission' in the statements to be used. There was no such Explanation in section 162 of the old Act.

We have thus given a brief history of section 162 of the Cr.P.C. and the introduction of amendment ever since 1961, to give overriding effect to section 27, thus making 'facts discovered' admissible.

[In the 154th Report, the Commission has suggested introduction of section 164A. In the 179th Report, while submitting a draft of Law Reforms (Miscellaneous) Provisions Act, 2002, certain amendments were suggested in section 162 and 164 but those amendments proposed do not affect or have any bearing on section 27 or on the present proposals for amendment of section 27.]