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Scope and Relevance of Statements Recorded Under SECTIONS 161 & 164 CR.P.C
Scope and Relevance of Statements Recorded Under SECTIONS 161 & 164 CR.P.C
TOPIC – 2
SCOPE AND RELEVANCE OF
STATEMENTS RECORDED UNDER
SECTIONS 161 & 164 CR.P.C
S.No. Name & Designation of the Officer Page Number
Sri G.Vallabha Naidu,
1. XI Additional District Judge, 1-8
Gudivada
Smt. G. Kalarchana,
2 II Addl. Junior Civil Judge, 9-15
Vijayawada
Smt. B. Padma
3 Principal Junior Civil Judge 16-20
Nuzvid
1
Paper Presented by
1
Nandini Satpathi v. P.L.Dani,1978 Crl.J.968SC.
2
The word "any person" in regard to its examination as part of the investigation in s. 161 Cr.P.C. must be
read in conjunction with s. 162 Cr.P.C.; Pakala Narayana Swami, (1939) 66 IA 66: 41 Born LR 428: 18 Pat 234;
VeluViswanathan, 1971 Cr LJ 725. See Ratanlal and Dhirajlal's The Code of Criminal Procedure, op. cit., p. 231.
2
But the accused has got right to remain silent as he got ‘right against self
incrimination’ as per S.161(2) CrPC and Art. 20(3) of Indian Constiutuion.4 But
if a witness examined by the police does not give answers to the questions he
can be punishable u/s.179 IPC or if he gives false information he can be
punished u/s.193 IPC.
Even though S.161(2) CrPC casts a wide shielding net to protect the
formally accused persons as well as suspects and witnesses during the
investigative stage, S.132 of the Evidence Act limits the applicability of this
protection to witnesses during the trial stage.5
The statements of all witnesses who are acquainted with the facts and
circumstances of the case and who may have to be cited as witnesses in the
court are enviable to be reduced into writing. The statement of each witness
should be recorded separately. Statements recorded by Police Officers
u/s.161(3) Cr.P.C should not be in the indirect form of speech. The language of
S.162 Cr.P.C and S.145 of Evidence Act clearly indicates that the writing
should be describable as a statement of the witness himself and further that it
should be as nearly as possible, a complete record of what he has said.
S.161(3) Cr.P.C read together with S.173(3) Cr.P.C clearly indicates that
separate statements of all persons whom the prosecution proposes to examine
as its witnesses should be recorded and copies thereof must be furnished to
the accused before the commencement of the inquiry. 6 It shall also be
remembered that Police reports and other documents are supplied to the
accused, as per S. 207 Cr.P.C. These provisions should be sternly complied
with.7
Statements of witnesses if recorded in the case diary are covered by S.161
and 162, Cr.P.C. and the privilege assigned to the case diary does not extend to
the statements of the witnesses recorded therein. Only the gist of the
statements of witnesses recorded u/s. 161 (3) Cr.P.C need be mentioned in the
case diary. The case diaries should be written in the Form 16-A.
3
A person who gives false information in answer to such questions can be prosecuted under the provisions
of ss. 202 and 203 of the Indian Penal Code. Sankaralinga Kone, (1990) 23 Mad
4
Panner Selvam vs State Rep. By Inspector Of Police, Crl.R.C (MD).No.259 of 2010
5
Selvi & Ors. vs. State of Karnataka (2010) 7 SCC 263
S.P.Rajkumar vs Central Bureau Of Investigation, CrR APPLICATION NO.363 OF 2015
6
Bommabayina Ramaiah v. State of A.P., AIR 1960 AP 160, If the statement is first recorded in a vernacular
language and then translated into English, mere supply of a copy of the English version would not meet the
requirements of law. In such a case, the statement in the vernacular being the original statement, copy of it should
also be furnished to the accused. Muniswamy v. State, 1954 Cr LJ 905 Mysore; In re Rangaswami, 1957 Cr LJ 866
Mad.; Public Prosecutor v. Parasurama Prabhu, 958 Cr LJ 392 Mad.
7
The accused has the right to all the copies of the statements recorded by the investigating agency. Dalla v.
State of Rajasthan, 1988 Cr LJ 42 (Raj.).
3
b. Evidentiary Value:
The statements recorded by the police u/s.161 CrPC are not evidence for
prosecution. They can be used by the defence for contradicting the prosecution
witnesses. 8 But when the prosecution witness turns hostile, with the
permission of court, the Public Prosecutor can cross examine that witness by
using his 161 statements to establish contradiction.
When 161 statements falls u/s.27 or u/s.32(1) of Indian Evidence Act, then
those statements can be used by prosecution as evidence. S.161 statements
are not substantive evidence.9 Statement of injured witness was recorded as
dying declaration but he survived, then such statement has to be considered as
S.161 statements.10 But 161 statements can be treated as dying declaration if
that person dies.11
S.161 statements can not be used against the accused in criminal cases.12
But there is no bar to use those statements in civil cases.13 They shall not be
used for any purpose except to contradict a witness in the manner prescribed
in the proviso to S. 162 (1). Further the FIR is not a substantial piece of
evidence.14 Under S.161 & S. 162 Cr.P.C the Witness is not confronted with the
statement. The Court cannot subsequently use the statement even for drawing
any adverse impression against the witness.15
If thumb impression or signature obtained, such statements are unreliable.16
Signing of statement merely puts the Court on caution and maynecessitate in
depth scrutiny of the evidence, but the evidence on this account cannot
berejected outright.17 Delay examination of witnesses by police u/s.161 CrPC,
if properly explained, is not fatal to the prosecution case.18
The term “statement”is not defined anywhere in the Act. However, it has got
wide connotation.
S. 164 CrPC does not provide for recording of any statement of an accused
person other than a confession. This section specifically provides record of two
clauses of a thing i.e.
8
In Pebam Ningol Mikoi Devi v. State of Manipur and others [(2010) 9 SCC 618], Jayalekshmi vs State Of
Kerala, WP(Crl.).No. 280 of 2015 (S).
9
Sethuraman @ Ramanathan vs State Rep. By, Crl.M.P.(MD).No.2985 of 2016; Md Jafrulla Khan v.
Inspector of police,Hyderabad,2000(2)ALT(Cri)9AP,Ram Swarup v. State of Rajasthan,2005 SCC(Cri)61.
10
Ranjit Singh & Anrs v. State of MP,2011 Cr LJ283(SC).
11
Mukesh Gopal v. State of Gujarat,2010 Cr LJ4721(SC)
12
Bontu Venkata Rao and anr. Vs. Kalla Venkataramana and anr, 2005ACJ77; 2003(3)ALD314
13
Bonta Venkata Rao v. Kolla Venkata Ramana,2003(2)ALT(Cri)572AP.
14
Baldev Singh vs. State of Punjab (AIR 1991 SC 31); Rajendra singh vs. State of U.P – (2007) 7 SCC 378
15
Dandu Lakshmi Reddi vs. State of A.P. (AIR 1999 SC3255).
16
Gurnam Kaur vs. Bakshish Singh and others – AIR 1981SC 631.
17
State of U.P vs. M.K. Anthony – AIR 1985 SC 48.
18
Banti v. State of MP, 2004 Cr LJ 372 SC.
4
19
Dara Singh v. Republic Of Inida [2011) 2 Scc 490]
5
20
Mahabir Singh v. State of Haryana, AIR 2001 SC 2503
21
R.Palanisamy vs State By Inspector Of Police, Crl.A.No.158 of 2013;In case of Guruvind palli Anna Rao -
of A.P, 2003 Cri. L.J. 3253
22
Patiram v.State of Maharashtra, 2003 Cri.L.J. 4718
7
needless exercise, not even prescribed in S. 164 Cr.P.C. And those statements
are to be signed by the witnesses.
If the witnesses were to resile subsequently in court during the inquiry or trial
from their earlier statements made on oath, they can be charged U/S.193 IPC.
However, the magistrate ought to be extremely careful as regards the identity of
the witness/complainant before proceeding to record the statement.23
3. Special approach to Statements of Child & Women Victims:
In cases of child victims, the statement ought to be recorded in the
special child witness /vulnerable witness room away from the grim dynamics of
the court. The magistrate can take the aid of visual guides/diagrams and
anatomically correct dolls with a view to ensure that the young witness, who
might not be articulate or possess an adult vocabulary, is able to communicate
and explain as to what happened.
S. 25 of the POCSO (Protection of Children from Sexual Offences Act,
2012) also envisage the presence of a parent/support person with the victim at
the time of recording of statement. There are similar safeguards in S.164(5A)
CrPC in cases of women victims of sexual assault.It also permits the services of
a special educator/interpreter/translator to aid the judge to understand and
record the statement better as per S.164(5A)(a)proviso of CrPC.
Wherever possible, the magistrate must direct the IO to make the necessary
arrangements for video recording of the statement. The expectation, therefore
is, utmost sensitivity and responsiveness while recording the testimony of a
vulnerable witness, with due regard to the trauma & stigmatic impact that the
witness has undergone.24
c. Evidentiary Value:
23
Ajay Kumar Parmar v. State of Rajasthan (2012) 12 SCC 406).
24
Virender v. State of NCT of Delhi (Crl. A.No. 121/2008
25
State of Maharashtra and Ors.v.Ramchandra Sambhaji Karanjule and Ors, 2017 ALLMR(CRI) 1347;Sunil
Kumar And Others V. State Of M.P, Air 1997 Sc 940
8
1.The confession would not ordinarily be considered the basic for conviction.
However, it is admissible and conviction may also be based upon it if it is found
truthful and voluntary and in a given case some corroboration is necessary.
Confession which is not retracted even at the stage of trial and even accepted
by the accused in the statement u/s.313 Cr.P.C. can be fully relied upon. So,
the conviction based thereon together with other circumstantial evidence is
sustainable.
2.The accused in his statement u/s.313 Cr.PC or during cross-examination
never suggested that his statement u/s.164 Cr.PC is false. Allegation of
presence of police officers at the time of recording the confession was without
any material. Requirement of S.164(2) Cr.P.C have been complied with. Such a
confession statement was fit to be accepted.26
Confession was recorded after the preliminary inquiry against the accused had
commenced and such confession so recorded could not be taken in
evidence.”27Confession of a co-accused is a weak type of evidence.
A statement given by a witness u/s.164 Cr.P.C., is like a 'previous statement'
given during investigation u/s.161 Cr.P.C. It is not 'substantive evidence'
adduced before the Trial Judge, because it was not recorded in the presence of
the accused. Because it was recorded - 'res inter alia acta - recorded behind the
back of the accused and it was recorded from a witness during investigation.
Besides giving it to a police officer, it was also given to a Magistrate.
CONCLUSION:
Therefore any statement made by a witness, during the course of
investigation either orally or in written, would fall within the scope of S.161
Cr.P.C. and the same cannot be used as evidence and the same can be used
only for the narrow purpose as provided in the said provision itself. The said
statements of the witness could not be marked as a substantive piece of
evidence by the court. So the protective scope of Art. 20 (3) read with S.161 (2)
CrPC guards against the compulsory extraction of oral testimony, even at the
stage of investigation. And the scope of S.161 Cr.P.C does include actual
accused and suspects.
The failure of the Magistrate u/s.164 CrPC to put such questions from
which he could ascertain the voluntary nature of the confession detracts so
materially from the evidentiary value of the confession of an accused that it
would not be safe to act upon the same. Full and adequate compliance not
merely in form but in essence with the provisions of S.164 CrPC and the Rules
framed by the High Court is imperative and its non-compliance goes to the root
of the Magistrates jurisdiction to record the confession and renders the
confession unworthy of credence.
26
Anil Alias Raju Namdev Patil V. Administration Of Daman & Diu [(2007) 1 Mlj (Crl.) 753 (Sc)]
27
State V. Ram Autar Chaudhry [Air 1955 All 138]
9
Paper Presented by
Smt. G. Kalarchana,
II Addl. Junior Civil Judge,
Vijayawada.
take a case where an accused person is being prosecuted for causing grievous
hurt to X with an axe. If X whose evidence is recorded in the Court stated in
the course of his evidence that the accused struck him with the axe in such a
way that the metallic head of the axe came into contact with his arm causing a
fracture, and if in the course of the investigation he had stated that the
accused had beat him with the handle namely the stick portion of the axe, then
X should first of all be asked whether he had stated before the Investigating
Officer that he was beaten by the accused with the stick portion
of the axe. The exact passage occurring in his statement under Section 161
should be read out and put to the witness whether the witness admits or
denies having made such a statement before the Investigating Officer, the exact
statement which was read out to the witness should be incorporated verbatim
in the deposition within inverted commas. If the witness admits having made
that statement there is no need to give it a separate exhibit number and no
further proof of that statement is required. If on the other hand the witness
denies having made such a statement, then exhibit number “D” series should
be given to that passage and that passage should be accordingly marked in the
case diary statement supplied to the Court. “Thereupon, it should be
mentioned in the deposition itself within brackets that exhibit D.1 or D.2 as the
case may be, is the relevant passage from the
statement of the witness recorded under Section 161 Cr.P.C. By this process
the statement is merely brought on record. But it is yet to be proved. When the
Investigating Officer who recorded the statement is examined in the Court the
passage marked for purpose of contradiction namely exhibit D.1 and D.2 as the
case may be, should be read out to him and he should be asked if the witness
had stated as mentioned in that exhibit. It is only when the Investigating
Officer answers in the affirmative that the Exhibit can be deemed to have been
properly proved. This is how positive statements made by witness under
Section 161 are proved.
Sometimes the witnesses might not have mentioned an important
circumstance in the course of his evidence recorded before the Court. Such
material omissions also fall within the category of contradictions and they too
have to be proved. For example in the case mentioned above if X had stated
before the Court that he was beaten by the accused with the axe not only on
the arm but also on the leg and if he did not mention it to the Investigating
Officer in his statement under Section 161, that the accused beat him with the
axe on the leg, it is a material omission amounting to contradiction. In the first
place the witness should be asked whether he had mentioned to the
Investigating Officer who recorded his statement under Section 161 that he
was beaten by accused with the axe on the leg. If the witness admits that he
did not state so, no further proof of the omission is necessary. If on the other
11
hand he asserts that he had stated that fact to the Investigation Officer, that
should be so recorded in the deposition of the witness. When the Investigating
Officer is examined in the Court later on he should be asked if the witness has
stated before him that he was beaten by the accused with the axe on the leg.
Naturally, the Investigating Officer would answer in the negative. It is only
then that the omission can be deemed to have been proved. This is how case
diary statements should be used for contradicting the witnesses. Even when a
prosecution witness turns hostile the same procedure should be followed by
the prosecutor when the contradicts the witness with his earlier statements
under Section 161 Cr.P.C. But, the difference is that in such a case the exhibit
will be numbered in the “P” series, instead of “D” series. Sometimes, this
procedure is not followed but the relevant passage is marked in the case diary
statement and an exhibit number is assigned to it and the witness is merely
questioned “Did you state before the police as per Ex.D.1? “ His answer that he
did not state before the police as per Ex.D.1 is recorded. Subsequently when
the Investigation Officer is examined in the Court, he is asked whether the
witness had stated as per Ex. D.1 in the course of investigation and his answer
in the affirmative is recorded. If this method is adopted the Court will be put to
the necessity of referring once again to the original statements under Section
161. If on the other hand the procedure mentioned above is adopted the actual
statement used for the purpose of contradiction forms an integral part of the
deposition of the witness and there will not be any need for the Court to refer to
the original statement under Section 161 Cr.P.C. Hence, it is desirable to follow
only the earlier procedure mentioned above in preference to the latter method.
The statement under Section 161 may be used as a piece of substantive
evidence only when the witness dies and the statement can be brought within
the purview of one of the several clauses contained in Section 32 of the
Evidence Act.
Confessions:
The substantive law as to confessions is contained in Section 24 to 30 of
the Indian Evidence Act and the adjective law in Secs. 163, 164, 281(2) to (6)
and 463 of the Criminal Procedure Code, 1973. Section 164 of the Code of
Criminal Procedure, 1973 lays down that any Magistrate of the First Class or
any Metropolitan Magistrate empowered may record any statement or
confession made to him in the course of investigation under Chapter XIV of
the Code or at any time afterwards before the commencement of the enquiry or
trial. Such confessions shall be recorded and signed in the manner provided in
Sections 164 and 281(2) to (6) of the Code of the Criminal Procedure. But these
Sections are to be read together and the procedure which is laid down therein
with minute particularity, must be meticulously followed. It must be
remembered that Section 164 is not restricted to recording of confession. It has
12
Paper Presented by
Smt. B. Padma
Principal Junior Civil Judge
Nuzvid
Introduction:-
Statement in its dictionary meaning is the act of stating or reciting. The term
statement is not defined anywhere in the Act. However, it has got wide connotations.
Generally, statements are recorded in criminal procedure code under section 161 and
162. Under section 164 of Cr.P.C the confession statements of accused will be
recorded.
Provided that when any witness is called for the prosecution in such
inquiry or trial whose statement has been reduced into writing as aforesaid,
any part of his statement, if duly proved, may be used by the accused, and
17
In decisions State of U.P Vs MK Anthony (1985 SCC (Crl) 105) and State of
Rajasthan Vs Teja Ram and others ( AIR 1999 SC 1776), the apex court observed
that section 162 of Cr.P.C., does not provide that, evidence of a witness given in the
court becomes inadmissible, if is found that the statement of witnesses recorded in the
course of investigation was signed by the witness at the instance of the investigating
officer. It merely puts court on caution and may necessitate in depth scrutiny of the
evidence.
18
In case of Pakala Narayana Swami Vs emperor AIR 1939 P.C. 47 the question
before the court was whether statements from which the guilt of an accused can be
inferred amounts to a confession or not. it was held that “A confession must either
admit in terms the offence, or at any rate substantially all the facts which constitute
the offence. An admission of a gravely incriminating fact, even a conclusively
incriminating fact, is not in itself a confession, for example, an admission that the
accused is the owner of and was in recent possession of the knife or revolver which
caused death with no explanation of any other man’s possession”
A question may arise as to why there is need to record the statement under
section 164 of the code in addition to statement recorded under section 162 of the
19
Code. The object of recording of statements of witnesses under section 164 of the Code
is twofold; (1) to deter witnesses from changing their versions subsequently and (2) to
get over the immunity from the prosecution in regard to information given by the
witnesses under section 162 of the code. The other reason of recording statement of
witnesses under section 164 of the code is to minimize the chances of changing the
versions by the witnesses at the trial under the fear of being involved in perjury. The
object behind it is that when during the course of investigation police records the
statements under section 162 of the Code they cannot administer oath to the person
making statement and cannot obtained his signature, but under section 164 of the
Code, a magistrate recording statement of a person can administer oath to him and
obtain his signature over the statement Certainly if a person makes and signs a
statement then naturally he comes under moral obligation and chances of his turning
hostile will be reduced. . But the evidence of witness whose statement is recorded
under section 164 of the Code must be approached with caution.
Procedural safeguards:-
The magistrate shall record the confession in the manner provided in section
281 for recording the examination of the accused persons. It shall not only be signed
by Magistrate, but also by the accused himself. The magistrate shall also append a
memorandum at the foot of the record as laid down in the sub section (4). if he has no
jurisdiction to inquire or try the offence he shall forward the confession so recorded to
the magistrate by whom the case is to be inquired into or tried. The provisions of the
section 164 of the criminal Procedural Code and rules and guidelines framed by the
Honourable High Court in this behalf providing for procedural safeguards etc, must be
complied with not only in form, but also in essence. When a confession is not recorded
by the magistrate in the manner prescribed by the section 164 of Criminal Procedure
Code, then it is not admissible in evidence.
Evidentiary value of statement recorded under section 164 Cr.P.C, is that, the
statement cannot be treated as substantive evidence when the maker does not depose
of such facts on oath during trial. before acting on a confession made before a judicial
magistrate in terms of section 164, the court must be satisfied first that the
procedural requirements laid down in sub section (2) to (4) are complied with. These
are salutary safeguards to ensure that the confession is made voluntarily by the
accused after being apprised of the implications of making such confession. The
endeavour of court should be to apply its mind to the question whether the accused
was free from threat duress or inducement at the time of making confession.
Parmananda Vs state of Assam (2004(2) ALD Crl 657 The confession would not be
ordinarily considered the basis for conviction. However, it is admissible, and
conviction may also be based upon it if it is found truthful and voluntary and in a
given case some corroboration is necessary. Confession which is not retracted even at
the stage of trial and even accepted by the accused in the statement under section 313
Cr.P.C. can be fully relied upon. So, the conviction based thereon together with other
20
Role of section 145 of Indian Evidence Act in examining witness basing on 161
and 164 statements:-
The object of this section is to give the witness a chance of explaining the
discrepancies. So when previous statement is to be proved as an admission, the
statement as such should be put to the witness and if the witness denied having given
such a statement, it does not amount to any admission and if it is proved that he has
given such statements, the Attention of witness to be drawn on that statement.
Section 145 of the Act states that – Cross- examination as to previous statements in
writing- A witness may be cross- examined as to previous statements made by him in
writing or reduced into writing, and relevant to matters in question, without such
writing being shown to him, or being proved, but if it is intended to contradict him by
the writing, his attention must before the writing can be proved, be called to those
parts of it which are to be used for the purpose of contradicting him. The Section 145
of the Act does not speak about as to which statement recorded under section 162 of
the code or 164 of the Code is to be considered as a previous statement in writing.
Thus, both the statements recorded under section 162 and 164 of the Code are the
previous statements to invoke section 145 of the Act.
Conclusion:-
Recording of statements under section 161 and 164 of Cr.P.C., plays a pivotal
role in criminal trial. The purpose of contradiction between evidence of a witness
before the court and the statement recorded under section 161 and 164 of Cr.P.C is
primarily to shake credit of the witness, it is only to put the court on guard, to
scrutinise the evidence with great care. Thereby it is duty of all judicial officers to pay
special attention to the provisions of section 161, 164 of Code with reference to
Section 145 of Evidence Act, so as to enable them to have clear notions about all
relevant provisions in this regard.