Report No. 14
41. Corroboration of retracted confessions.-
There is no statutory requirement that the confession of an accused person, later retracted, should be corroborated before it is acted upon. In a large number of cases, prisoners who have made lengthy and detailed confessions duly recorded under section 164 Criminal Procedure Code, and have reiterated them in the committing magistrate's court resile from these confessions in the court of session.
The task of the Judges in such cases is made very difficult. Judicial decisions have therefore laid down the rule that while a conviction on a retracted confession is not illegal, yet prudence dictates that a conviction should be based on such a confession, only if it is corroborated by independent testimony. The rule of practice and prudence requiring corroboration of a retracted confession has achieved the status of a principle of law and has been universally recognised and acted upon. We would suggest that this rule might be given statutory recognition.
Statements of witnesses during investigation
42. Examination of witnesses by the police.-
A police officer making an investigation is authorised to examine any person supposed to be acquainted with the facts and circumstances of the case. The statement so made to the police officer by the witnesses is generally reduced to writing. The person examined is bound to answer all questions relating to the case put to him by the officer, other than questions the answers to which would expose him to a criminal charge or to other penalty. The Criminal Procedure Code of 1882 was slightly different, in that, it called upon the person to answer the questions "truly". The word "truly" has been omitted in the present Code.
43. Their importance.-
The recent amendment of the Code in 1955 has resulted in making the record of such a statement a very important one. Formerly, a statement made to a police officer during an investigation could be used only by the accused person for the purpose of contradicting the witness in the manner provided by section 145 of the Evidence Act. The recent amendment has made such a statement also available to the prosecution with the leave of the court for a similar purpose.
In addition, in the procedure relating to the trial of warrant cases instituted on police report, the magistrate is competent to frame a charge in writing against the accused, upon a perusal of all the statements recorded by the police, other documents and after hearing the prosecution and the accused. In fact, in such cases the statements recorded by the police form the basis for the framing of the charge against the accused and the trial. In all such cases the accused has to be furnished with copies of these statements so that he might know at the outset, the nature and volume of the evidence against him The importance of these statements has thus been greatly increased under the new procedure.
44. There is another point which needs to be noticed. Section 162 provides that no statement reduced to writing in the manner required by section 161 by a police officer shall be signed by the person making it. That was the position even prior to the recent amendment. Though the statement is not required to be signed by him, the witness can be contradicted by his earlier statement made to the police if he is called by the prosecution in the inquiry or the trial.
Amendment of in section 161(2), Cr. P.C.- The difference between the Act of 1882 and the present Criminal Procedure Code is, that the witness is now under a duty only to make a statement in reply to questions put to him by a police officer in relation to the case but is not obliged to answer these questions truly. It is no doubt true that the statement made before a police officer during an investigation is not one made on oath and it does not subject the maker of it to a prosecution for perjury even if it is found to be false. However, it is said that it is only proper that the law should require the witness to speak the truth even during investigation. The deletion of the word "truly" seems, it was said, virtually to suggest that the version of the witness need not be the true one. Some police officers have therefore urged that the Code should be amended by reintroducing the word "truly" in section 161(2).
Not advisable.- But the position is not so simple. Under section 177, Indian Penal Code, "Whoever, being legally bound to furnish information on any subject to any public servant, as such, furnishes, as true, information on the subject which he knows or has reason to believe to be false, shall be punished A witness examined by a police officer under section 161 of the Criminal Procedure Code is "legally bound" to answer questions put to him with reference to the case under investigation.
If the Code continued to be worded as it was in 1882, requiring the person to answer such questions "truly", the witness would become liable to a prosecution under section 177, if it was shown that the information furnished by the witness was false to his knowledge or that he had reason to believe it to be false. It is difficult enough to get witnesses to speak to facts relevant to the investigation of an offence; if the threat of prosecution were to be held over their heads, it might deter witnesses still further from giving information and seriously impede the investigation.
It might also be, that notwithstanding that the version of a witness is true, the final result of the prosecution might be the discharge or acquittal of the accused; in such an event, the witness's version might well be held to be untrue and the witness might become liable to a prosecution. It is presumably for these and like reasons that the word "truly" was dropped from the provision. We are therefore of the view that it is not desirable to restore the language used in the Code of 1882.
45. Record of the statement of a witness.-
Except for the few amendments introduced in 1955, the Code in this regard is mainly in the same form as in 1898. The Code continues to provide that the statement made to a police officer, if reduced to writing shall not be signed by the witness making it. We presume that it was so provided because of the prevalence of illiteracy among the people and the incompetence or want of integrity in the police in the earlier days. It would certainly be unsafe to ask a person either to sign or to make a thumb impression acknowledging the correctness of a statement which he could not read for himself.
It seems to have been assumed that the police were unreliable. Statements made to them were not admissible in evidence. Even if a statement purporting to have been recorded by a police officer was read over to the witness, there was no guarantee that in the reading over of the statement, a dishonest police officer would read to him the statement as recorded in fact. All these reasons, perhaps, justified the enactment of the provision.
Under the amended Code, the statement of a witness can be used to contradict him not only by the accused but by the prosecution as well. If the witness has spoken to a particular set of circumstances relating to the case when he was examined by a police officer and later during the examination in the court he gives a different version, it is open to the prosecution to make use of his earlier statement under section 145 of the Evidence Act. The witness can accordingly be cross-examined; and if it is intended to contradict him by the writing, his attention must be called to those parts of it which are to be used for the purpose of contradicting him.
Such a procedure cannot possibly advance the case of the prosecution. At the most the prosecution may be able to convince the court that the witness is a liar. The witness usually protests that his earlier statement was not properly recorded by the police, that it was not read over to him (no provision requiring it to be read over exists) and that he was not aware of what the police officer recorded. The magistrate has in these circumstances to consider generally, having regard to the surrounding circumstances, whether what the witness had stated before the police could be true.
But his earlier statement cannot be treated as evidence in the case merely because he has been effectively contradicted. If there is other evidence which goes to support the witness's earlier version, the magistrate may, relying on such other evidence, convict the accused and discard the evidence of the witness who has been effectively contradicted. If there is no such other evidence the witness's later statement in court would alone be evidence, which can be acted upon. Notwithstanding the use of section 145 of the Indian Evidence Act, the earlier version can never become substantive evidence. We are for these reasons not satisfied that the amended provision is of much use.
46. However, it needs consideration whether in the light of present-day conditions when the extent of literacy has substantially increased, it should not be provided that the statement of a witness should be reduced to writing and signed by him, provided the witness is capable of reading what has been so recorded. Psychologically, persons who have witnessed the commission of an offence are generally eager to state the true version, if they are questioned soon after the commission of the offence and before their memory of the events has faded away or other considerations or influences have worked on them.
If the witness is literate-in the sense that he can read for himself-there should be no objection to get the witness to sign and date the statement and also certify that he has read it and that it is in accord with what he stated. Such a provision may act as a valuable check upon the tendency of the witnesses either to waver or to be won over by the other side. A greater reliance will be placed upon statements so signed and verified, if it is later found necessary to contradict the witness in the manner provided in section 145 of the Evidence Act.
From the point of view of satisfactory investigation, such a provision may be of great use. The percentage of acquittals in criminal cases has reached a high figure; and this is not always due to the police being unable to place adequate evidence before the courts. What often happens is, that the witnesses when they appear to give evidence in courts display a tendency to reduce the effectiveness of their evidence by deposing to a version different from that given by them in their statements to the police. The Inspector-General of Police, Bihar, told us that at least fifty per cent. of the police cases ?ailed because the witnesses turned completely hostile under the influence brought to bear upon them by the accused and his supporters.
Statements to be signed in certain circumstances.- If, therefore, the law enables the police to get the witness to sign and date the statement, if the witness can read for himself what has been recorded, it should go a great way towards combating the tendency of the witnesses turning hostile. We recommend an amendment to section 162 making such a provision. We are aware that limited as it is only to literate persons, such an amendment of the law does not go far; but it would certainly mark a desirable advance upon the present position.
47. Statements to be recorded.-
The importance of the statements of witnesses has been greatly increased by the amended procedure in sections 207A and 251A of the Code. Among the documents that are to be supplied to the accused under section 173, copies of the statements of witnesses recorded by the police are perhaps the most important. On the basis of these statements, the magistrate will proceed to frame a charge and it is on that basis that the accused will have to formulate his defence. While making suitable amendments to the other provisions of the Code in the light of the introduction of sections 207A and 251A, section 101 has not been touched. We have therefore to consider whether section 161 requires amendment.
Under this provision, any police officer making an investigation may examine orally any person supposed to be acquainted with the facts and circumstances of the case. Such person shall be bound to answer all questions relating to such case put to him by such officer excepting those which might expose him to a criminal charge or forfeiture. Section 161(3) runs as follows:
"The police 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 record of the statement, of each such person whose statement he records".
The section does not compel the police officer to record the statement of the witnesses examined by him. It is optional on his part to do so. In what manner the statements should be recorded is also not specified in the section. He may record merely the substance of what the witness states or he may make only notes thereof. But if he does record the statements of witnesses, the law requires that a separate record of the statement of each witness shall be made. What we wish particularly to refer to is, that unrestricted discretion has been given to the investigating officer to reduce or not to reduce to writing any statement made to him in the course of his investigation.
The purpose of section 173 requiring copies of the statement of witnesses to be supplied to the accused would be wholly defeated, if the police officer either does not record the statements or does it in such a perfunctory manner that the usefulness of the record is lost. It has to be remembered, that apart from furnishing the foundation for the charge, such statements of the witnesses are available to the accused as well as the prosecution with the leave of the Court under section 162 for the purpose of contradicting the witnesses.
It seems to us, therefore, that in the case of persons whom the prosecution proposes to examine as its witnesses, the law should insist that the investigating officer should record the statements of the witnesses as far as possible in their own words and that no discretion should be left to him to record or not to record such a statement. The accused person should be entitled to receive a copy of the statements of witnesses who are to be called to give evidence against him. Unless it is made the duty of the police officer to record the statement and a copy of the statement is required to be furnished to the accused, the purpose underlying the recent amendments of the Code would tend to be defeated.
48. Searches (Difficulty of getting respectable search witnesses).-
We have been informed that considerable difficulty is being experienced by the police officers in obtaining the presence of respectable residents of the locality at searches made under Chapter VII of the Code. Section 103 requires that the officer about to make a search shall call upon two or more respectable inhabitants of the locality to attend and witness the search. He may even issue an order in writing to them to do so. A person who without reasonable cause refuses or neglects to attend and witness a search when called upon to do so by an order in writing, is liable to punishment under section 187 of the Indian Penal Code.
The police officers have stated that respectable persons do not desire to get involved in searches of this kind and make attempts to evade, being required to act as witnesses. What probably prevents respectable persons from serving as witnesses is the fact that subsequently they may have to appear a number of times at the police station or in court to give evidence. It is probable that if such witnesses are not required to attend court frequently and are treated with proper courtesy they might be available in a larger number. The difficulty appears to have assumed grave proportions, as we were told that on several occasions the police officers had failed to obtain the attendance of any person of "the locality" and that prosecutions had failed for this reason.
It is obvious that it might sometimes be difficult to get as witnesses to the search, inhabitants of the locality by reason of their interest in the accused or.other causes. If, for want of such persons in the locality, other respectable persons not of the locality are called to be witnesses to the search, the search should not be vitiated; but nevertheless it should be for the prosecution to show that no such persons were available in that locality. We would therefore suggest that the law should not insist upon the presence of persons of the particular locality and it, should be sufficient if respectable persons, wherever they might be found, attended and witnessed the search. We suggest that section 103 of the Code should be amended accordingly.
49. Remand (Detention beyond twenty-four hours) (Authority of magistrate necessary).-
The provisions of the Code of Criminal Procedure lay special emphasis on the need for the expeditious completion of investigations. Section 173 provides that "Every investigation under this Chapter shall be completed without unnecessary delay". In the investigation of an offence a police officer generally arrests a person. Section 61 of the Code lays down that "No police officer shall detain in custody a person arrested without warrant for a longer period than is reasonable and such period shall not* * * * * exceed twenty-four hours exclusive of the time necessary for the journey from the place of arrest to the Magistrate's Court".
Article 22 of the Constitution makes a similar provision. Under these provisions, no person can be detained in custody beyond the specified period without the authority of a magistrate. Section 167 of the Criminal Procedure Code enables the magistrate to direct such detention or custody.
50. Remand during investigation.-
The opening words of section 167 contemplate that an investigation into an offence after the arrest of the accused should normally be capable of completion within twenty-four hours. Failing that, it is incumbent upon the investigating officer, in cases where there are grounds for believing that the accusation is well-founded, to forward the accused person to the nearest magistrate, whether such magistrate has or has not the jurisdiction to try the case. At the same time, he has to forward to that magistrate a copy of the entries in the diary relating to the case.
The moment the accused person is produced before the magistrate, he passes into judicial custody. Thereafter, it is for the magistrate to decide whether the accused person should be retained in judicial custody or whether for furthering the progress of investigation he should be placed in the custody of the police. The magistrate is expected to decide the question judicially on a consideration of the facts and after considering whether the circumstances of the case require that the accused should be placed in police custody.
The importance which the law attaches to the liberty of the individual needs no emphasis. It is in recognition of this principle that a magistrate, authorising detention in the custody of the police is required by the section to record his reasons for doing so. If the order is passed by a magistrate other than the district magistrate or sub-divisional magistrate, he is further directed to forward a copy of his order with his reasons to his immediate superior.