I WORKSHOP – 2017-18

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
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SCOPE AND RELEVANCE OF STATEMENTS RECORDED UNDER

SECTIONS 161 & 164 CR.P.C

Paper Presented by

Sri G.Vallabha Naidu,

XI Addl.District Judge,
Gudivada.
INTRODUCTION:

Examination of accused u/s.161 CrPC is popularly known as

interrogation. The object of examination of witness u/s.161 CrPC is to produce
the evidence before the court at the time of trial. Further these statements are
useful for the court for framing the charge. Before trial commences copies of
these statements recorded by the police should be furnished to accused free of
cost.
Confession is voluntary admission of guilt by the accused person. As per
S.25 of Indian Evidence Act confession recorded by police officer is
inadmissible in evidence. That is the reason behind S.164 CrPC authorizing the
Magistrate to record the confession statement of the accused as per procedure
prescribed to ensure it has voluntariness. Unless the Court is satisfied that the
confession is voluntary in nature, it cannot be acted upon and no further
enquiry as to whether it is true or trustworthy need to be made. The current
discusses on how far these S.161 and S.164 CrPC statements are admissible
and relied upon.
SCOPE OF S.161 CrPC STATEMENTS:
a. Recording of Statements of Witnesses:

ThePolice Officer making an investigation should himself invariably examine

any person and record his statement during an investigation. But, in cases
where it is impracticable, the Head constable or the writer attached to the
Police Station may record the statements of witnesses. In that case both the
recording officer and the investigating officer should sign the statement
recorded u/s. 161 (3) Cr.P.C. Under this section administering oath or
affirmation is not requisite in an examination.

Here expression ‘any person’ includes accused also.1 So persons to be

examined include whosoever may subsequently be accused of the offence in
respect of which the investigation is made by the police officer.2 The person
examined in the course of a police investigation is obliged to answer all
questions put to him "other than questions the answers to which would have a

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

tendency to expose him to a criminal charge or to a penalty or forfeiture." The

person questioned is legally bound to state the truth.3

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

SCOPE OF S.164 CrPC STATEMENTS:

a. Basis for Recording:

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

(1) Statement of the witnesses and

(2) Confession of a person accused of an offence.
The word statement in sub-clause (1) has been used in wider sense and may
include statement either of a person or even of a different person and they
would have recorded in course of the
Chapter XII if they were intended to be a statement made during the course of
investigation. A question may arise as to why there is need to record the
statement u/s.164 CrPC in addition to statement recorded u/s. 162 CrPC. The
object of recording of statements of witnesses u/s.164 CrPC is two fold;
(1) to daunt witnesses from shifting their versions subsequently at the trial
under the fear of being caught up in perjury.
(2) to get over the immunity from the prosecution in regard to information given
by the witnesses u/s.162 CrPC.
(3) During the course of investigation, police recording the statements u/s.162
CrPC can neither administer oath to the person making statement nor obtain
his signature, however u/s.164 CrPC, a magistrate recording statement of a
person it is vice versa. The person making and signing a statement before the
magistrate during the course of investigation will not disown it and will sustain
the case of prosecution. Undoubtedly if a person makes and signs a statement
then obviously he comes under moral obligation and probability of his turning
hostile will be abridged.19
b. Legal Requirements To Be Followed by Magistrate:
1. Procedure & Principles for recording Confessions by Accused:
S.281 CrPC and R. 32 ofCriminal Rules of Practice & Circular Orders,1990
prescribes the procedure for recording confessions. S.164 CrPC states that any
Metropolitan Magistrate or Judicial Magistrate whether or not he has
jurisdiction in the case is competent to record confessions made to them in the
course of an investigation under Chapter XII Cr.PC. or any at time afterwards
but before the commencement of the enquiry or trial.
If an accused person, on being arrested, expressed his willingness to make a
confession, his confession should be promptly got recorded by a Magistrate
empowered to record statements u/s.164 Cr.PC. It is essential that the
Magistrate is not the one who will eventually try the case or hold committal
proceedings. The confession shall be recorded in open court and during the
court hours, save for exceptional reasons.
The following directives have been laid down by various High Courts for
recording confession statement:
(1). When an accused person is produced before a Magistrate for recording a
confession statement, the Magistrate shall explain to him that he is before a

19
Dara Singh v. Republic Of Inida [2011) 2 Scc 490]
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Magistrate, that he is under no obligation at all to answer any question, that he

is free to make a statement or refrain from making any as he pleases, that it is
not intended to take him as an approver and that anything said by him will be
taken down and thereafter used against him.
(2). A Magistrate may put such questions as he considers necessary to assure
himself that the accused is making the statement voluntarily.
(3). Further, the Magistrate shall put the following questions
(a) When were you arrested?
(b) When the police first questioned you?
(c) How often did they question you?
(d) Were you detained anywhere before you were taken to custody? If so, when
and where?
(e) Where you induced to make a confession statement and are you making the
statement as a result of any ill-treatment? (The Magistrate shall examine the
body of the accused, if feasible). The questions put by the Magistrate as well as
the answers given by the accused shall be reduced to writing.
(4). If the accused person, after being so questioned, still expresses a desire to
make a statement, the Magistrate shall give him reasonable time for reflection,
which shall ordinarily be not less than 24 hours. During this period he shall be
kept in judicial custody.
(5). When the accused person is produced before the Magistrate after the expiry
of the period so granted, he shall again warn the accused that he is not bound
to make any statement and that any statement made by him will be used
against him during the trial of the case.
(6). If the accused still desires to make a statement, and the Magistrate is
satisfied that he is doing so voluntarily, the Magistrate shall record the
statement of the accused.
(7). The Magistrate shall record the statement of the accused in the court and
during the court hours, save for exceptional reasons to be recorded in writing.
(8). The Magistrate shall see that during the questioning of the accused and the
recording of his statement, there are no Police Officers either in the court
house or in the vicinity.
(9). Every question put to the accused and every answer made by him shall be
recorded in full.
(10). The accused person shall be questioned in the language known to him
and the answer given by him shall be recorded in his own words, as far as
possible.
(11). After recording the statement of the accused, the same shall be read out
and explained to him in the language known to him and the fact of having read
the statement to the accused and the accused having admitted its correctness
shall be recorded.
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(12). Thereafter, the Magistrate shall append a certificate as required by

S.164(3) Cr.PC.
(13). When a requisition for recording a statement u/s.164 Cr.PC is received by
a Magistrate having jurisdiction to try the offence or commit the accused for
trial, he shall direct the accused to be taken before another Magistrate for that
purpose, unless the Magistrate, for reasons to be recorded in writing, deems fit
to record the statement himself; and when he so does, he shall transfer the
case to any Magistrate subordinate to him or report the case to the District
Magistrate/ Sessions Judge, who shall take the case on his own file or transfer
it to another Magistrate”.
(14) The Magistrate recording Confession or Statement shall forward it to
Magistrate empowered to inquire and try the case.
(15) An accused can approach the court with a request for recording of his
confession, however in that situation, the magistrate has to ensure his
identity as the accused and also the fact that investigation in that offence
is currently underway, otherwise such statement shall not amount to a
statement ‘in the course of investigation’ and therefore not a valid
statement within the meaning of Section 164 of the Cr.P.C.20
The statement recorded u/s164 Cr.PC is the public document according to the
S.74 of the Evidence Act and does not require any formal proof. Such
statement is admissible in evidence u/s.80 of the Evidence Act. Hence
summoning of Magistrate by Sessions Court to prove contents of the said
statement is improper.21
The statement recorded U/S.164 Cr.PC are part and parcel of the case diary of
investigation. Even in the charge sheet there should be mention of recording of
statement by the magistrate”.22
S. 207 (iv) of the code specifically states that the copies of confession and
statement recorded u/s.164 Cr.PC has to be supplied to the accused before
committing the case u/s.209 Cr.PC.
In important cases, witnesses may be produced before a Magistrate empowered
to record the statement u/s.164 Cr.PC and their statements got recorded by
the Magistrate on oath before the commencement of the inquiry or trial.
2. Procedure for recording Witness Statements:
While recording witnesses statements u/s.164 CrPC Magistrate is required to
neither administer warning nor follow the procedure that they have to follow
before recording a confession from the accused. Even if they follow the said
procedure it will not make the statement invalid or unreliable, but, it is a

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:

S.164 Cr. P. C. Statement can be used for corroboration or contradiction made

in the Court in the manner provided u/s. 157 and 145 of the Evidence Act.25A
confession is substantive evidence against its maker, so that it has been duly
recorded and suffers from no legal infirmity, it would suffice to convict the
accused who made the confession, though as a matter of prudence, the Court
expects some corroboration before acting upon it. Even then slight
corroboration would suffice.
But before acting upon a confession, the Court must be satisfied that it
is voluntary and true.Voluntaries depend upon whether there was any threat,
inducement or promise.Its truth is to be judged in the context of the entire
prosecution case,- whether it fits into the proved facts and does not run
counter to them.If these two conditions are satisfied, it becomes the most
portent piece of evidence against the maker.

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.

In criminal justice delivery system trial is genus, of which contradiction

and omission are species. To prove guilt of accused, prosecution has to prove
all ingredients of offence beyond all reasonable doubt. Evidence of prosecution
is fundamentally emerges from investigation. It is settled law that the Courts
have to convict the accused only on the basis of legal evidence. There should
not be any moral conviction. The basic principle is that the evidence, which is
admissible as per the provisions of the Indian Evidence Act, 1872, Criminal
Procedure Code, 1973 and other enactments should establish the guilt of the
accused. Therefore, the Courts have to follow the settled legal principles
keeping away personal whims and fancies. There can not be any presumption
that 161(3) Cr.P.C. statement would reveal truth. To enquire trustworthiness
and truthfulness of witness, contradiction and omission are very important. It
helps defence and also to prosecution when particular witness turn over from
his previous statement given during investigation or enquiry and not support
prosecution case. Word “contradiction” found its roots in “Bible” the holy
religious book of Christianity. Means that two antithetical propositions cannot
both be true at the same time and in the same sense. In classical logic, a
contradiction consists of a logical incompatibility between two or more
propositions. It occurs when the propositions, taken together, yield two
conclusions which form the logical, usually opposite in versions of each other
Illustrating a general tendency in applied logic, Aristotle’s law of
noncontradiction states that “One cannot say of something that it is and that it
is not in the same respect and at the same time”. But here with reference to
law of evidence we have to understand word “contradiction” and “omission”. To
simply comprehend contradiction we should consider Cr.P.C. 161, 162 and
Sec. 145, 154 of Evidence Act altogether.
Contradictions :
Means a statement in evidence given by a witness on a material fact, contrary
to earlier statement said to have been given by said witness when he was
examined by police.
Omissions :
Omission is a statement of a witness while giving evidence on a material fact
which he did not state before police. Sec. 161 Statement – Evidentiary value:
That portion of the statement recorded under Section 161 which is
proposed to be used for the contradicting the witness should first of all be
brought to his notice and he should be questioned about it. For example let us
 10

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

reference to statements as well. The statements need not amount to a

confession. They may be partly confessional and partly exculpatory. They may
not be importance in view of the different mode of recording thereof as would
appear from subsection (2) of Section 164. If it is a confession, it should be
recorded and signed in the manner provided in Section 281(2) to (6) and the
direction in sub-section (3) should be strictly complied with. The confession
need not be of a person already accused, it may be of a person who may
ultimately be an accused. Subsection (3) has reference to the person and has
not specifically used the word “accused”. The act of recording confessions
under Section 164 is a very solemn act and in discharging his duties under the
said section, the Magistrate must take care to see that the requirements of
Section 164(3) are fully satisfied. The Magistrate may usefully put the following
questions
to the accused:
I. When were you taken into custody by the police and where were you
detained and how long till you were produced before me?
II. Were you detained anywhere by the police before you were taken formally
into custody and if so, in what circumstances?
III. When did the police first question you?
IV. How often were you questioned by the police?
V. Were you induced, coerced, promised or advised by the police to make a
confessional statement ?
VI. Did the police or anyone else suggest or promise to you that you would be
taken as an approver?
VII. Is the confessional statement you offer to make induced by any harsh
treatment and if so, by whom?
VIII. How much time were you given for reflection after you were removed from
the police custody?
IX. Did anyone induce, promise or threaten you during this period to make
confessional statement?
X. Look on all sides. There is no police here. You need no longer entertain any
fear of the police.
XI. Remember you are before the Magistrate. (I am the Magistrate). You are a
free agent and no longer in custody of the police. You are not bound to make
confession. It is open to you to make confession or not. You will not be given
back into the custody of the police.
XII. The confession which you may make may be used as evidence against you
at the trial. You may bear this well in mind before you make your statement.
XIII. While making confessional statements do not proceed on the erroneous
impression that you will be taken as an approver or that anyone has promised
you to take you as an approver?
 13

XIV. What is it that prompts you to make a confessional statement ?

XV. Now say what all you want to say. These questions and any others which
may suggest themselves to the Magistrate before he records the confession of
the accused should form part of the record made under Section 164 of the
Code. The Magistrate should note that all these questions should be put when
the accused is produced from judicial custody and before recording his
confession. Even after production from judicial custody, it is advisable that the
accused, if necessary, may be given one hour time for reflection allowing
him to remain in the Court before recording his confession. When upon
questioning the accused and from observation of his demeanour, the
Magistrate has reason to belief that the accused has shaken off the effects of
police custody, the Magistrate should proceed to record his confession. The
Magistrate should also examine the body of the accused for marks of violence if
that is suspected or the accused makes grievance of the same. The Magistrate
must avoid questions in the nature of cross examination. He should record the
confessional statement so far as it is possible in the words of the accused as
made by him. Procedure to record Statement U/S. 164 Cr.P.C:
1. The police should give a requisition to the Magistrate to record the statement
of the witnesses produced by him.
2. The police officer when the witnesses is not produced may request the
Magistrate to issue process, and the process should be issued immediately and
the police officer can collect the same to serve the witness and to produce him
before the Magistrate. The date for the production of witnesses in accordance
with the process so issued should be fixed by the Magistrate.
3. If a Magistrate who has not been empowered under Section 164 of the Code,
receives a requisition from a Police Officer to record such statements, the
Magistrate shall forthwith return the requisition to the Police Officer with an
endorsement, that the Magistrate has not been empowered to record the
statement under Section 164 of the Code.
4. If the witnesses are produced when the requisition is presented, the
Magistrate shall forthwith arrange to have those witnesses examined,
suspending his other court work, if necessary. There should be no avoidable
delay in recording statements of witness U/S. 164 of the Code.
5. When more than one witness is produced for recording statements under
section 164 of the Code, it is desirable that the witnesses yet to be examined
are segregated and that the witness who has already been examined is not
allow access to those yet to be examined.
6. Such statements shall be recorded in open Court and during Court hours,
save for exceptional reasons to be recorded in writing. Witnesses statement
may be recorded in the manner prescribed for recording evidence. If evidence
tendered by witness in witness box is credit worthy and reliable, that evidence
 14

cannot be rejected merely because a particular statement made by witness

before Court does not find place a statement recorded Under Section 161
Cr.P.C. vide (2014) 4 SCC 747 (Two Judges Bench), Between: Ashok
Debbarama alias Achak Debbarama Vs State of Tripura )
Further, statement U/Sec. 161 Cr.P.C. can be used only for purpose of
contradiction, where as statements U/Sec. 164 Cr.P.C. can be used for both
corroboration and contradiction. As defence had no opportunity to Cross-
examine witnesses whose statements are recorded under Sec. 164, such
statements cannot be treated as substantive evidence. The said aspect was
clearly discussed in AIR 2013 SC 651 (Two Judges Bench), Between R.Shaji
Vs State of Kerala. In the said decision, the duty of Magistrate and object
behind recording Sec. 164 Cr.P.C. statement is also considered and discussed.
It was held that Magistrate has to elicit all information which witness wishes to
disclose and as a witness who may be an illiterate, rustic villager may not be
aware of purpose for which he has been brought, and what he must disclose in
his statement, Magistrate should ask witness explanatory questions and obtain
all possible information in relation to the case. Object of recording statement of
witness U/Sec.164 Cr.P.C. is twofold. In the first place to deter witness from
changing his stand by denying contents of his previously recorded statement,
and secondly, to tide over immunity from prosecution by witness U/Sec. 164
Cr.P.C.
Conclusion :
According to Sir John Woodburn, Lieutenant-Governor of Bengal , " the
evil is essentially in the investigating staff. It is dishonest and it is tyrannical ...
". According to him, "The honest policeman rigs the evidence to convict the
man he knows is guilty. Perhaps it is the only way he can get a conviction. The
dishonest policeman rigs the evidence to convict a man he knows is innocent."
That the process of investigation characterizes the nature of policing to a great
extent and constitutes as one of the most important occasions for bringing the
police and 'publics' into contact. The process is not an indivisible whole, but
involves many interactional stages assuming different forms of contact
appropriate to each. There prevails a serious crisis of confidence that afflicts
public opinion toward the police. It is apparent that ample powers are vested in
the magistrate to check arbitrary arrests. Police excesses & to facilitate a more
incisive probe into the discovery of truth, as various stages ofter investigation,
and even after filing of thenpolice report.
Never should a judge find himself in a situation where he has to make a
grudging confession of acquitting a known culprit due to lack of evidence or
investigative lapses. A conscientious magistrate's Dharma also lies in the deft
use of these provisions, in order to uphold constitutional values and the Rule
of law. Existing provisions can be interpreted creatively. Cues can be taken
 15

from the magisterial role, as envisaged in other jurisdictions. No doubt, there

would be questions raised over the magistrate having descended into the
arena. But the magistrate ought to not to be unnecessarily wary of such
aspersions; or be a worshipper of dead habit, convention, or the complacency
of the status quo, for no ideals, however hallowed, can be allowed to impede
the voyage of discovery, an affirmative duty for the search of truth. Trial judge
as the kingpin in administration of Justice........
(All India Judges Association v. Union of India (1992) 1 SCC 119)
 16

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.

Section 161: Examination of witnesses by police:- (1) Any police officer

making an investigation under this Chapter, or any police officer not below
such rank as the State Government may, by general or special order, prescribe
in this behalf, acting on the requisition of such officer, may examine orally any
person supposed to be acquainted with the facts and circumstances of the case.
(2) Such person shall be bound to answer truly all questions relating to such
case put to him by such officer, other than questions the answers to which
would have a tendency to expose him to a criminal charge or to a penalty or
forfeiture.
(3) 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 and true record of the statement of each such person whose
statement he records."
Provided that the statement made under this Sub-section may also be recorded
by audio-video electronic means.
Provided further that the statement of a woman against whom an offence
under section 354, section 354A, section 354B, section 354C, section 354D,
section 376, section 376A, section 376B, section 376C, section376D, section
376E or section 509 of The Indian Penal Code is alleged to have been
committed or attempted, shall be recorded, by a woman police officer or any
woman officer.
162: Statements to police not be signed:- Use of statements in evidence:-
(1) No statement made by any person to a Police Officer in the course of an
investigation under this Chapter, shall, if reduced to writing, be signed by the
person making it; nor shall any such statement or any record thereof, whether
in a police diary or otherwise, or any part of such statement or record, 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:

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

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 and when any part of such statement is so used, any part thereof may
also be used in the re-examination of such witness, but for the purpose only of
explaining any matter referred to in his cross-examination.
(2) Nothing in his section shall be deemed to apply to any statement falling
within the provisions of clause (1) of Section 32 of the Indian Evidence Act,
1872 or to affect the provisions of section 27 of that Act.
Explanation:- An omission to state a fact or circumstance in the statement
referred to in sub-section (1) may amount to contradiction if the same appears
to be significant and otherwise relevant having regard to the context in which
such omission occurs and whether any omission amounts to a contradiction in
the particular context shall be a question of fact.
Scope and relevance of statements under section 161 of Cr.P.C:-

Statement recorded U/sec.161 Cr.P.C. is not admissible in evidence.

Object and purpose of section 161 is to collect evidence regarding commission of an
offence by examining and recording the statements of the witnesses material in
respect of commission of the offence. Signing of statement under section 161 is
prohibited under section 162., it is prerogative of police officer to record the statement
of a witness examined.

Statement to police by witnesses in course of investigation cannot be used as

substance evidence. This principle was laid down in a decision reported in AIR 1980
SC 873 statement to police officer during investigation cannot be used for any purpose
except Sec.27 (or) Sec.32 (1) of I.E. Act.

Evidentiary value of 161 statement if signed by witness:-

Basically, the signature of witness on section 161 of Cr.P.C., statement is not

necessary. The practice of getting signatures of the witnesses on 161 statements is
expressly prohibited under section 162 of Cr.P.C. violation of this provision may
sometimes diminish the value of the testimony of the witnesses when they come to
court. However, it is not the law that whenever the signature of the person is obtained
in his statement recorded during an investigation that statement should be ignored.
But in such situation the court must be cautious in appreciating the evidence that the
witness who gave the singed statement may give in court.

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

Delay in recording 161 statements and its effects:-

Delay in recording of statement of witnesses - Does not necessarily discredit

their testimony, if they are cogent and credible and delay is explained to the
satisfaction of Court - The effect of delay in recording statements of witnesses under
section 161 of the Code of Criminal Procedure was examined by the Hon’ble Supreme
court in the case of “Harbeer singh vs sheeshpal”, where in Honourable apex court
observed that delay in recording of statements of the prosecution witnesses under
Section 161 Cr.P.C., although those witnesses were or could be available for
examination when the Investigating Officer visited the scene of occurrence or soon
thereafter would cast a doubt about prosecution case. It is settled law that every delay
in examining witness not fatal subject to explanation given by investigating officer to
the satisfaction of court. In case Ganesh Bhagvan Vs state of Maharastra 2005
DMC 445 the Honourable court observed that though it is a well settled law that delay
in recording the statement of the witnesses does not necessarily discredit their
testimony, but if those witnesses were or could be available for examination when the
Investigating Officer visited the scene of occurrence or soon thereafter, and even then,
the delay has occurred, it would cast a doubt upon the prosecution’s case.

Scope and relevance of statements under section 164 of Cr.P.C:-

Confession means a formal statement admitting that one is guilty of a crime.

Confession is not defined in the Evidence Act. Confession includes admission, but an
admission is not confession. A confession either admit in terms of the offence or at any
rate substantially all the facts which constitute the offence. If a statement falls short of
such a plenary acknowledgment of guilt, it would not be a confession even though the
statement is of some incriminating fact which taken along with other evidence tends to
prove the guilt of the accused. Such a statement is only an admission but not a
confession. The person making it states something against himself, therefore, it should
be made in surroundings, which are free from suspicion. Otherwise it violates the
constitutional guarantee under Article 20(3) so that person accused of an offence shall
be compelled to be a witness against himself. A direct acknowledgement of guilt
should be regarded as confession.

Statement under Sec.164 Cr.P.C. is not substantive evidence:-

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”

Object of recording 164 statements:-

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 164 statements:-

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

circumstantial evidence is sustainable. The accused in his statement under section

313 Cr.P.C. or during cross-examination never suggested that his statement under
section 164 Cr.P.C. is false. Allegation of presence of police officers at the time of
recording the confession was without any material. Requirement of section 164(2)
Cr.P.C. have been complied with. Such a confession statement was fit to be accepted.

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.

Section 145 of the Act is consisting of two parts:-

The first part enables the opponent to cross-examine a witness as to previous

statement made by him in writing or reduced to writing, without such writing being
shown to him; The second part gave restriction on the opponent. If the opponent
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. It will be needless to mention that while dealing with section145 of
the Act, the case of Tahsildarsingh V/s. State of Uttar Pradesh reported in A.I.R.
1959 S.C. 1012 has been a milestone of judicial business. Without touching the ratio
laid down in Tahsildarsing case no criminal case can accelerates. There can be no
hard and fast rules as regards compliance with the requirement of section 145. all that
is required is that the witness must be treated fairly and be afforded a reasonable
opportunity of explaining contradictions, after attention drawn to him in fair and
reasonable manner. When prosecution examines a witness and asks him, if he made
certain statements before the police or before magistrate under section 164 of Cr.P.C.,
and witness denies, it is duty of prosecution to confront him with statements and get
them marked as exhibits. So that witness might be afforded an opportunity, either to
explain contradiction and deny them. If the statement of the witness is too long and
only one or two statements in it are to be used for contradiction, mere reading the
whole lengthy statement may confuse the witness and it would not be a fair method of
 21

drawing attention of witness. So it would be proper to put fact by fact in such

statement so as to give a fair opportunity to the witness explain.

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.