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Query: Section 161 of Code of Criminal Procedure, 1973 talks about the Examination of witnesses by police which provides for oral examination of a person by any investigating officer when such person is supposed to be acquainted with the facts and circumstances of the case. To what extent can the Court rely on the statement of the person who is examined under section 161 in order to come to the conclusion that the accused is guilty of a crime. In other words, what is the scope of section 161 and how much can it be used by the defence to prove the guilt of the accused? I am representing the accused in the CBI matter.
Related Articles and Sections
INTRODUCTION TO SECTION 161 OF THE CODE OF CRIMINAL PROCEDURE, 1973
Section 161 of the Code of Criminal Procedure, 1973 (CrPC) provides a framework for the examination of witnesses by police officers during the investigation of a crime. This section empowers an investigating officer to examine orally any person who appears to be acquainted with the facts and circumstances of the case. The primary purpose of this provision is to gather information that may assist in the investigation and to ascertain the truth of the matter under inquiry.
SCOPE AND LIMITATIONS OF SECTION 161
1. Nature of Statements Under Section 161:
- The statements made by witnesses during the examination under Section 161 are not recorded in a formal manner akin to a deposition or testimony in court. Instead, they are typically recorded in the form of a statement by the police officer, which is not on oath. This informal nature means that such statements are generally considered to be of limited evidentiary value.
2. Admissibility in Court:
- The statements recorded under Section 161 are not admissible as evidence in a court of law under Section 162 of the CrPC. This section explicitly states that no statement made by a person to a police officer shall be used for any purpose in the trial of the case. Therefore, while these statements can be used by the police for the purpose of investigation, they cannot be relied upon as substantive evidence against the accused during the trial.
3. Use in Cross-Examination:
- However, the statements made under Section 161 can be used for the purpose of contradiction during cross-examination. If a witness testifies in court and their testimony contradicts what they stated to the police, the defense can use the prior statement to challenge the credibility of the witness. This is a critical aspect that can be leveraged by the defense to undermine the prosecution's case.
RELEVANCE TO THE DEFENSE STRATEGY
1. Challenging Credibility of Prosecution Witnesses:
- As the defense counsel, you can focus on the inconsistencies between the witness's statements made during the Section 161 examination and their testimony in court. This can be a powerful tool to create reasonable doubt regarding the reliability of the prosecution's evidence.
2. Highlighting Lack of Formality:
- Emphasize the informal nature of the statements made under Section 161. Since these statements are not made under oath, they lack the solemnity and reliability of sworn testimony. This can be a point of argument to suggest that the prosecution's reliance on such statements is misplaced.
3. Investigative Bias:
- You may also argue that the statements taken by the police could be influenced by bias or coercion, especially if the investigation was not conducted impartially. This can further weaken the prosecution's case and support the defense's position.
CONSTITUTIONAL PROVISIONS AND RIGHTS OF THE ACCUSED
1. Right to a Fair Trial:
- Article 21 of the Constitution of India guarantees the right to life and personal liberty, which has been interpreted by the Supreme Court to include the right to a fair trial. The use of statements made under Section 161, which are not admissible in court, can be argued to infringe upon this right if they are relied upon by the prosecution to establish guilt.
2. Presumption of Innocence:
- Article 14 of the Constitution ensures equality before the law and equal protection of the laws. The principle of presumption of innocence until proven guilty is a cornerstone of criminal jurisprudence. The defense can argue that reliance on informal statements undermines this principle, as it may lead to a conviction based on unverified and unreliable information.
3. Right Against Self-Incrimination:
- Article 20(3) of the Constitution provides that no person accused of any offense shall be compelled to be a witness against himself. While this primarily pertains to the accused, it also underscores the importance of ensuring that all evidence presented in court is obtained lawfully and fairly.
CONCLUSION
In summary, Section 161 of the CrPC serves as a tool for police investigations but has significant limitations regarding the admissibility and reliability of the statements made under it. As the defense counsel, your strategy should focus on highlighting these limitations, particularly the inadmissibility of such statements in court and their informal nature. By effectively challenging the credibility of prosecution witnesses and emphasizing the rights of the accused under the Constitution, you can create a robust defense that seeks to establish reasonable doubt regarding the guilt of your client.
The interplay between Section 161 and the constitutional rights of the accused provides a fertile ground for defense arguments. By leveraging the limitations of Section 161 and the principles of fair trial and presumption of innocence, you can construct a compelling case that seeks to protect the rights of the accused and challenge the prosecution's narrative.
Section 161 of the Code of Criminal Procedure, 1973 (CrPC) provides a framework for the examination of witnesses by police officers during the investigation of a crime. This section empowers an investigating officer to examine orally any person who appears to be acquainted with the facts and circumstances of the case. The primary purpose of this provision is to gather information that may assist in the investigation and to ascertain the truth of the matter under inquiry.
SCOPE AND LIMITATIONS OF SECTION 161
1. Nature of Statements Under Section 161:
- The statements made by witnesses during the examination under Section 161 are not recorded in a formal manner akin to a deposition or testimony in court. Instead, they are typically recorded in the form of a statement by the police officer, which is not on oath. This informal nature means that such statements are generally considered to be of limited evidentiary value.
2. Admissibility in Court:
- The statements recorded under Section 161 are not admissible as evidence in a court of law under Section 162 of the CrPC. This section explicitly states that no statement made by a person to a police officer shall be used for any purpose in the trial of the case. Therefore, while these statements can be used by the police for the purpose of investigation, they cannot be relied upon as substantive evidence against the accused during the trial.
3. Use in Cross-Examination:
- However, the statements made under Section 161 can be used for the purpose of contradiction during cross-examination. If a witness testifies in court and their testimony contradicts what they stated to the police, the defense can use the prior statement to challenge the credibility of the witness. This is a critical aspect that can be leveraged by the defense to undermine the prosecution's case.
RELEVANCE TO THE DEFENSE STRATEGY
1. Challenging Credibility of Prosecution Witnesses:
- As the defense counsel, you can focus on the inconsistencies between the witness's statements made during the Section 161 examination and their testimony in court. This can be a powerful tool to create reasonable doubt regarding the reliability of the prosecution's evidence.
2. Highlighting Lack of Formality:
- Emphasize the informal nature of the statements made under Section 161. Since these statements are not made under oath, they lack the solemnity and reliability of sworn testimony. This can be a point of argument to suggest that the prosecution's reliance on such statements is misplaced.
3. Investigative Bias:
- You may also argue that the statements taken by the police could be influenced by bias or coercion, especially if the investigation was not conducted impartially. This can further weaken the prosecution's case and support the defense's position.
CONSTITUTIONAL PROVISIONS AND RIGHTS OF THE ACCUSED
1. Right to a Fair Trial:
- Article 21 of the Constitution of India guarantees the right to life and personal liberty, which has been interpreted by the Supreme Court to include the right to a fair trial. The use of statements made under Section 161, which are not admissible in court, can be argued to infringe upon this right if they are relied upon by the prosecution to establish guilt.
2. Presumption of Innocence:
- Article 14 of the Constitution ensures equality before the law and equal protection of the laws. The principle of presumption of innocence until proven guilty is a cornerstone of criminal jurisprudence. The defense can argue that reliance on informal statements undermines this principle, as it may lead to a conviction based on unverified and unreliable information.
3. Right Against Self-Incrimination:
- Article 20(3) of the Constitution provides that no person accused of any offense shall be compelled to be a witness against himself. While this primarily pertains to the accused, it also underscores the importance of ensuring that all evidence presented in court is obtained lawfully and fairly.
CONCLUSION
In summary, Section 161 of the CrPC serves as a tool for police investigations but has significant limitations regarding the admissibility and reliability of the statements made under it. As the defense counsel, your strategy should focus on highlighting these limitations, particularly the inadmissibility of such statements in court and their informal nature. By effectively challenging the credibility of prosecution witnesses and emphasizing the rights of the accused under the Constitution, you can create a robust defense that seeks to establish reasonable doubt regarding the guilt of your client.
The interplay between Section 161 and the constitutional rights of the accused provides a fertile ground for defense arguments. By leveraging the limitations of Section 161 and the principles of fair trial and presumption of innocence, you can construct a compelling case that seeks to protect the rights of the accused and challenge the prosecution's narrative.
Likely Arguments
COMPREHENSIVE ANALYSIS OF SECTION 161 OF THE CODE OF CRIMINAL PROCEDURE, 1973
Introduction to Section 161
Section 161 of the Code of Criminal Procedure, 1973 (CrPC) allows police officers to examine witnesses during the investigation of a crime. The section empowers the investigating officer to record statements of individuals who are believed to have knowledge of the facts and circumstances surrounding the case. However, the legal standing of these statements in court is limited, and understanding this limitation is crucial for your defense strategy.
Scope of Section 161
- Nature of Statements: Statements recorded under Section 161 are not made under oath and are not considered evidence in the trial. They are primarily for the purpose of investigation.
- Admissibility: As per Section 162 of the CrPC, statements made to the police during the investigation cannot be used as evidence in court, except for the purpose of contradicting the witness if they testify differently during the trial.
- Reliability: The statements may be used to refresh the memory of the witness or to impeach their credibility if they change their testimony later.
Potential Arguments from the Prosecution
1. Credibility of Witnesses: The prosecution may argue that the witnesses examined under Section 161 are credible and their statements should be given weight.
- Counter: Highlight that these statements are not made under oath and lack the procedural safeguards of a formal testimony. The reliability of such statements is inherently questionable.
2. Corroboration of Evidence: The prosecution may present that the statements corroborate other evidence collected during the investigation.
- Counter: Emphasize that corroboration must come from admissible evidence. Statements under Section 161 cannot be used to establish guilt unless they are corroborated by other admissible evidence.
3. Impeachment of Witnesses: The prosecution may use the statements to impeach the credibility of defense witnesses.
- Counter: Argue that the defense can also use Section 161 statements to impeach the prosecution's witnesses, thereby leveling the playing field.
4. Inferences from Statements: The prosecution may attempt to draw inferences from the statements to suggest a pattern of behavior or motive.
- Counter: Stress that inferences drawn from non-admissible statements are speculative and cannot form the basis of a conviction.
5. Public Interest and Justice: The prosecution may argue that allowing the statements to be considered serves the public interest in ensuring justice.
- Counter: Assert that justice must be served through lawful means, and reliance on inadmissible statements undermines the integrity of the judicial process.
Relevant Sections of Indian Laws
- Section 162 of CrPC: Prohibits the use of statements made to the police during investigation as evidence in court, except for contradiction purposes.
- Section 138 of the Indian Evidence Act, 1872: Discusses the admissibility of evidence and the importance of witness credibility.
- Article 20(3) of the Constitution of India: Provides protection against self-incrimination, reinforcing the need for fair trial standards.
Optimal Defense Strategy
1. Challenge the Admissibility of Evidence: Focus on the inadmissibility of Section 161 statements in court. File a motion to exclude any references to these statements during the trial.
2. Emphasize Procedural Irregularities: Investigate and highlight any procedural lapses in the investigation that may have affected the integrity of the statements recorded under Section 161.
3. Witness Credibility: Prepare to challenge the credibility of prosecution witnesses by demonstrating inconsistencies in their statements or motives for testifying against the accused.
4. Focus on Burden of Proof: Remind the court that the burden of proof lies with the prosecution, and they must establish guilt beyond a reasonable doubt using admissible evidence.
5. Utilize Cross-Examination: Use cross-examination effectively to expose weaknesses in the prosecution's case, particularly regarding the reliability of witness statements.
6. Present Alternative Theories: If applicable, present alternative explanations for the evidence that do not implicate your client, thereby creating reasonable doubt.
Conclusion
In defending your client against charges in a CBI matter, it is essential to leverage the limitations of Section 161 statements effectively. By focusing on the inadmissibility of these statements, challenging witness credibility, and emphasizing the prosecution's burden of proof, you can construct a robust defense strategy. Always ensure that your arguments are grounded in the relevant sections of Indian law to reinforce your position in court.
Introduction to Section 161
Section 161 of the Code of Criminal Procedure, 1973 (CrPC) allows police officers to examine witnesses during the investigation of a crime. The section empowers the investigating officer to record statements of individuals who are believed to have knowledge of the facts and circumstances surrounding the case. However, the legal standing of these statements in court is limited, and understanding this limitation is crucial for your defense strategy.
Scope of Section 161
- Nature of Statements: Statements recorded under Section 161 are not made under oath and are not considered evidence in the trial. They are primarily for the purpose of investigation.
- Admissibility: As per Section 162 of the CrPC, statements made to the police during the investigation cannot be used as evidence in court, except for the purpose of contradicting the witness if they testify differently during the trial.
- Reliability: The statements may be used to refresh the memory of the witness or to impeach their credibility if they change their testimony later.
Potential Arguments from the Prosecution
1. Credibility of Witnesses: The prosecution may argue that the witnesses examined under Section 161 are credible and their statements should be given weight.
- Counter: Highlight that these statements are not made under oath and lack the procedural safeguards of a formal testimony. The reliability of such statements is inherently questionable.
2. Corroboration of Evidence: The prosecution may present that the statements corroborate other evidence collected during the investigation.
- Counter: Emphasize that corroboration must come from admissible evidence. Statements under Section 161 cannot be used to establish guilt unless they are corroborated by other admissible evidence.
3. Impeachment of Witnesses: The prosecution may use the statements to impeach the credibility of defense witnesses.
- Counter: Argue that the defense can also use Section 161 statements to impeach the prosecution's witnesses, thereby leveling the playing field.
4. Inferences from Statements: The prosecution may attempt to draw inferences from the statements to suggest a pattern of behavior or motive.
- Counter: Stress that inferences drawn from non-admissible statements are speculative and cannot form the basis of a conviction.
5. Public Interest and Justice: The prosecution may argue that allowing the statements to be considered serves the public interest in ensuring justice.
- Counter: Assert that justice must be served through lawful means, and reliance on inadmissible statements undermines the integrity of the judicial process.
Relevant Sections of Indian Laws
- Section 162 of CrPC: Prohibits the use of statements made to the police during investigation as evidence in court, except for contradiction purposes.
- Section 138 of the Indian Evidence Act, 1872: Discusses the admissibility of evidence and the importance of witness credibility.
- Article 20(3) of the Constitution of India: Provides protection against self-incrimination, reinforcing the need for fair trial standards.
Optimal Defense Strategy
1. Challenge the Admissibility of Evidence: Focus on the inadmissibility of Section 161 statements in court. File a motion to exclude any references to these statements during the trial.
2. Emphasize Procedural Irregularities: Investigate and highlight any procedural lapses in the investigation that may have affected the integrity of the statements recorded under Section 161.
3. Witness Credibility: Prepare to challenge the credibility of prosecution witnesses by demonstrating inconsistencies in their statements or motives for testifying against the accused.
4. Focus on Burden of Proof: Remind the court that the burden of proof lies with the prosecution, and they must establish guilt beyond a reasonable doubt using admissible evidence.
5. Utilize Cross-Examination: Use cross-examination effectively to expose weaknesses in the prosecution's case, particularly regarding the reliability of witness statements.
6. Present Alternative Theories: If applicable, present alternative explanations for the evidence that do not implicate your client, thereby creating reasonable doubt.
Conclusion
In defending your client against charges in a CBI matter, it is essential to leverage the limitations of Section 161 statements effectively. By focusing on the inadmissibility of these statements, challenging witness credibility, and emphasizing the prosecution's burden of proof, you can construct a robust defense strategy. Always ensure that your arguments are grounded in the relevant sections of Indian law to reinforce your position in court.
Relevant Supreme Court Judgments
Year From: 1980, Year To: 2024
Year From: 1980, Year To: 2024
Supreme Court of India
Honourable Judges Ranjit Singh Sarkaria, O. Chinnappa Reddy
Date of Judgment: 31 Jul 1980
Segment Number (Approximate Page Number): 19
Relevancy Score: 75.62
In contrast with this, Section 160 of the Code does not expressly bind persons examined in Police investigation, to state the truth. The inquiry under Section 8(1) of the 1966 Act in view of Section 9(4) shall be deemed to be a judicial proceeding for the purpose of Sections 193 and 228 of the Penal Code. But a police investigation under Section 160 of the Code does not partake of the character of a judicial proceeding for any purpose and a witness examined during such investigation cannot be prosecuted under Section 193, Penal Code. The fourth important aspect in which the power and duty of an officer of the RPF conducting an inquiry under the 1966 Act, differs from a police investigation under the Code, is this Sub-section (3) of Section 161 of the Code says that the police officer may reduce into writing any statement made to him in the course of investigation. Section 162(1), which is to be read in continuation of Section 161 of the Code, prohibits the obtaining of signature of the person on his statement recorded by the investigating officer. But no such prohibition attaches to statements recorded in the course of an inquiry under the 1966 Act; rather, from the obligation to state the truth under pain of prosecution enjoined by Section 9(3) and (4), it follows as a corollary, that the officer conducting the inquiry may obtain signature of the person who made the statement. Fifthly, under the provision to sub-section (1) of Section 162 of the Code, oral or recorded statement made to a police officer during investigation may be used by the accused, and with the permission of the Court, by the prosecution to contradict the statement made by the witness in Court in the manner provided in Section 145, Evidence Act, or when the witness' statement is so used in cross examination, he may be reexamined if any explanation is necessary. The statement of a witness made to a police officer during investigation cannot be used for any other purpose, whatever, except of course when it falls within Sections 32 or 27 of he Evidence Act. The prohibition contained in Section 162 extends to all statements, confessional or otherwise during a police investigation made by any person whether accused or not, whether reduced to writing or not, subject to the proviso.
Supreme Court of India
Honourable Judges K.M. Joseph, Ashok Bhushan
Date of Judgment: 24 Apr 2019
Segment Number (Approximate Page Number): 13
Relevancy Score: 74.85
Case law has gone beyond this strict literal interpretation of the expression which may now bear a wider meaning, namely, bearing testimony in court or out of court by a person accused of an offence, orally or in writing. (7) To bring the statement in question within the prohibition of Article 20(3), the person accused must have stood in the character of an accused person at the time he made the statement. It is not enough that he should become an accused, any time after the statement has been made.” (Emphasis supplied) 34. Section 161 of the Cr.PC has the following marginal note: “Examination of witnesses by police” 35. Can a person, who is accused of an offence, be examined under Section 161 of the Cr.PC? As we have seen, when a person is named as an accused in First Information Report, he would stand in the shoes of an accused person. Does not the marginal note of Section 161 of the Cr.PC confine the power to the Police Officer to examine the witnesses and will it be denied to him qua a person who is already named as an accused? These questions are no longer res integra. In Nandini Satpathy v. P.L. Dani and another13, a Bench of three learned Judges was dealing with a case which arose from proceedings initiated against the appellant therein under Section 179 of the IPC. In the course of the judgment, speaking on behalf of the Bench, this is what Justice V.R. Krishna Iyer had to say: 13 AIR 1978 SC 1025 “32. We will now answer the questions suggested at the beginning and advert to the decisions of our Court which set the tone and temper of the “silence” clause and bind us willy-nilly. We have earlier explained why we regard Section 161(2) as a sort of parliamentary commentary on Article 20(3). So, the first point to decide is whether the police have power under Sections 160 and 161 of the CrPC to question a person who, then was or, in the future may incarnate as, an accused person. The Privy Council and this Court have held that the scope of Section 161 does include actual accused and suspects and we deferentially agree without repeating the detailed reasons urged before us by counsel.” (Emphasis supplied) 36. Thereafter, after referring to Pakala Narayana Swami (supra), regarding the scope of the word ‘confession’ the Court held inter alia as follows: “33. … We hold that “any person supposed to be acquainted with the facts and circumstances of the case” includes an accused person who fills that role because the police suppose him to have committed the crime and must, therefore, be familiar with the facts. The supposition may later prove a fiction but that does not repel the section. Nor does the marginal note “examination of witnesses by police” clinch the matter. A marginal note clears ambiguity but does not control meaning.
Supreme Court of India
Honourable Judges Swatanter Kumar, P. Sathasivam
Date of Judgment: 19 Apr 2010
Segment Number (Approximate Page Number): 59
Relevancy Score: 73.31
Section 172 of the Code has a meaningful bearing on the entire investigation by a police officer. It is mandatory for him to maintain a diary under this chapter where he shall enter day-by-day proceedings in the investigation carried out by him. He is expected to mention time of events and his departure, reporting back and closing of the investigation, the place/places he visited and the statements he recorded during investigation. The statement of the witness is recorded during the investigation under Section 161 shall be inserted in that diary. A Criminal Court is empowered under Section 172 (2) to send for the diaries and they could be used by the Court but not as evidence in the case but to aid it in such inquiry for trial. However, Sub-section 3 of the same Section provides that neither the accused nor his agents shall be entitled to call for such diaries, nor they are entitled to see them but it is only where the police officer who makes them to refresh his memory or the Court uses them for the purposes of contradicting such police officers in terms of Section 172 than Sections 161 or 145 provisions would apply. Section 173 commands the investigating agency to complete the investigation expeditiously without unnecessary delay and when such an investigation is completed, the officer in charge of the police station shall forward to a Magistrate empowered to take cognizance of offence on a police report with the details in the form as may be prescribed by the State Government and provide the information required under this Section. Provisions of Section 173 (5) contemplates and make it obligatory upon the investigating officer where the provisions of Section 170 apply to forward to the Magistrate along with his report, all documents or relevant extracts thereof on which the prosecution proposes to rely other than those already sent to the Magistrate during investigation in terms of Section 170 (2) of the Code. During investigation the statement recorded under Section 161 of all the persons whom the prosecution proposes to examine as witnesses shall also be sent to the Magistrate. Some element of discretion is vested with the police officer under Section 173 (6) where he is of the opinion that any such statement is not relevant to the subject matter of the proceedings or its disclosure to accused is not essential in the interest of justice and is expedient in the public interest he shall indicate that part of the statement refusing a Magistrate that part from the copies to be granted to the accused and stating his reason for making such a request. Sub- Section 7 of the same Section is indicative of another discretion given to the police officer under law that where he finds it convenient, he may furnish the copy of documents refer to Sub-section 5 of the Section. Section 173 (8) empowers an investigating officer to submit a further report if he is able to correct further evidence.
Supreme Court of India
Honourable Judges A.M. Khanwilkar, S. Ravindra Bhat
Date of Judgment: 29 Oct 2020
Segment Number (Approximate Page Number): 18
Relevancy Score: 72.28
We feel that it would suffice if mere reference is made to some of the judgments, those being: (1) M.P. Sharma v. Satish Chandra, District Magistrate, Delhi [1954 SCR 1077] , (2) Raja Narayanlal Bansilal v. Maneck Phiroz Mistry [(1961) 1 SCR 417], (3) State of Bombay v. Kathi Kalu Oghad [(1962) 3 SCR 10], and (4) Nandini Satpathy v. P.L. Dani [(1978) 2 SCC 424]. 208. Article 22(1) and (2) confer certain rights upon a person who has been arrested. Coming to the provisions of Code of Criminal Procedure, Section 161 empowers a police officer making an investigation to examine orally any person supposed to be acquainted with the facts and circumstances of the case and to reduce into writing any statement made to him in the course of such examination. Section 162 which speaks of the use of the statement so recorded, states that no statement recorded by a police officer, if reduced into writing, be signed by the person making it and that the statement shall not be used for any purpose save as provided in the Code and the provisions of the Evidence Act. The ban imposed by Section 162 applies to all the statements whether confessional or otherwise, made to a police officer by any person whether accused or not during the course of the investigation under Chapter XII of the Code. But the statement given by an accused can be used in the manner provided by Section 145 of the Evidence Act in case the accused examines himself as a witness for the defence by availing Section 315(1) of the Code corresponding to Section 342- A of the old Code and to give evidence on oath in disproof of the charges made against him or any person charged together with him at the same trial. 209. There is a clear embargo in making use of this statement of an accused given to a police officer under Section 25 of the Evidence Act, according to which, no confession made to a police officer shall be proved as against a person accused of any offence and under Section 26 according to which no confession made by any person whilst he is in custody of a police officer, unless it is made in the immediate presence of a Magistrate, shall be proved as against such person. The only exception is given under Section 27 which serves as a proviso to Section 26. Section 27 contemplates that only so much of information whether amounts to confession or not, as relates distinctly to the fact thereby discovered, in consequence of that information received from a person accused of any offence while in custody of the police can be proved as against the accused. 210. In the context of the matter under discussion, two more provisions also may be referred to — namely Sections 24 and 30 of the Evidence Act and Section 164 of the Code. 211. Section 24 of the Evidence Act makes a confession, caused to be made before any authority by an accused by any inducement, threat or promise, irrelevant in a criminal proceeding.
Supreme Court of India
Honourable Judges B.S. Chauhan, S.A. Bobde
Date of Judgment: 22 Nov 2013
Segment Number (Approximate Page Number): 2
Relevancy Score: 72.13
However, as per the procedure prescribed under the CBI manual, the investigation report submitted by the I.O. goes to the superior officers for their comments, approval and directions, and ultimately, it goes to the Director of the CBI. In case the superior authorities have some query in respect of any matter in that report of the investigating officer, they are competent to issue directions to examine a particular witness on a particular point. The investigating officer is bound to do so in order to tie the loose ends of investigation. Such examination of witness or further investigation does not amount to the statement made by the I.O. in the affidavit before the court being false or having been made deliberately and mischievously to misguide the court. As per the requirement of the procedure prescribed under the CBI manual, the I.O., even after filing such an affidavit, was bound to carry out such directions issued by the superior authorities. 5. We have considered the rival submissions made by the learned counsel for the parties and perused the records. 6. In Chandra Shashi v. Anil Kumar Verma, (1995) 1 SCC 421, this Court held that no body should be permitted to indulge in immoral acts like perjury, prevarication and motivated falsehoods in the judicial proceedings and if someone does so, it must be dealt with appropriately. In case recourse to a false plea is taken with an oblique motive, it would definitely hinder, hamper or impede the flow of justice and prevent the courts from performing their legal duties. 7. In this context, reference may be made of Section 340 under Chapter XXVI of the Cr.P.C., under the heading of “Provisions as to Offences Affecting the Administration of Justice”. This Chapter deals with offences committed in or in relation to a proceeding in the court, or in respect of a document produced or given in evidence in a proceeding in the court and enables the court to make a complaint in respect of such offences if that court is of the view that it is expedient in the interest of justice that an inquiry should be made into an offence. Clause (b) of Section 195 (1) Cr.P.C. authorises such court to examine prima facie as it thinks necessary and then make a complaint thereof in writing after having recorded a finding to that effect as contemplated under Section 340 (1) Cr.P.C. In such a case, the question remains as to whether a prima facie case is made out which, if unrebutted, may have a reasonable likelihood to establish the specified offences and whether it is also expedient in the interest of justice to take any action. Thus, before lodging a complaint, the condition precedent for the court to be satisfied are that material so produced before the court makes out a prima facie case for a complaint and that it is expedient in the interest of justice to have prosecution under Section 193 IPC. (Vide: Karunakaran v. T.V. Eachara Warrier & Anr., AIR 1979 SC 290; and K.T.M.S.
Supreme Court of India
Honourable Judges Swatanter Kumar, P. Sathasivam
Date of Judgment: 19 Apr 2010
Segment Number (Approximate Page Number): 62
Relevancy Score: 70.79
The investigating officer is entitled to collect all the material, what in his wisdom is required for proving the guilt of the offender. He can record statement in terms of Section 161 and his power to investigate the matter is a very wide one, which is regulated by the provisions of the Code. The statement recorded under Section 161 is not evidence per se under Section 162 of the Code. The right of the accused to receive the documents/statements submitted before the Court is absolute and it must be adhered to by the prosecution and the Court must ensure supply of documents/statements to the accused in accordance with law. Under proviso to Section 162 (1) the accused has a statutory right of confronting the witnesses with the statements recorded under Section 161 of the Code thus indivisible. Further, Section 91 empowers the Court to summon production of any document or thing which the Court considers necessary or desirable for the purposes of any investigation, inquiry, trial or another proceeding under the provisions of the Code. Where Section 91 read with Section 243 says that if the accused is called upon to enter his defence and produce his evidence there he has also been given the right to apply to the Court for issuance of process for compelling the attendance of any witness for the purpose of examination, cross-examination or the production of any document or other thing for which the Court has to pass a reasoned order. The liberty of an accused cannot be interfered with except under due process of law. The expression `due process of law' shall deem to include fairness in trial. The Court gives a right to the accused to receive all documents and statements as well as to move an application for production of any record or witness in support of his case. This constitutional mandate and statutory rights given to the accused places an implied obligation upon the prosecution (prosecution and the prosecutor) to make fair disclosure. The concept of fair disclosure would take in its ambit furnishing of a document which the prosecution relies upon whether filed in Court or not. That document should essentially be furnished to the accused and even in the cases where during investigation a document is bona fide obtained by the investigating agency and in the opinion of the prosecutor is relevant and would help in arriving at the truth, that document should also be disclosed to the accused. The role and obligation of the prosecutor particularly in relation to disclosure cannot be equated under our law to that prevalent under the English System as afore-referred. But at the same time, the demand for a fair trial cannot be ignored.
Supreme Court of India
Honourable Judges Ranjan Gogoi, P. Sathasivam
Date of Judgment: 27 Sep 2012
Segment Number (Approximate Page Number): 9
Relevancy Score: 70.53
In such circumstances, it can be safely assumed that what has been happened in the present case is that along with the report of investigation a large number of documents have been forwarded to the Court out of which the prosecution has relied only on a part thereof leaving the remainder unmarked and unexhibited. 15. In a recent pronouncement in Siddharth Vashisht @ Manu Sharma V. State (NCT of Delhi) (supra) to which one of us (Sathasivam, J) was a party, the role of a public prosecutor and his duties of disclosure have received a wide and in-depth consideration of this Court. This Court has held that though the primary duty of a Public Prosecutor is to ensure that an accused is punished, his duties extend to ensuring fairness in the proceedings and also to ensure that all relevant facts and circumstances are brought to the notice of the Court for a just determination of the truth so that due justice prevails. The fairness of the investigative process so as to maintain the citizens’ rights under Articles 19 and 21 and also the active role of the court in a criminal trial have been exhaustively dealt with by this Court. Finally, it was held that it is the responsibility of the investigating agency as well as that of the courts to ensure that every investigation is fair and does not erode the freedom of an individual except in accordance with law. It was also held that one of the established facets of a just, fair and transparent investigation is the right of an accused to ask for all such documents that he may be entitled to under the scheme contemplated by the Code of Criminal Procedure. The said scheme was duly considered by this Court in different paragraphs of the report. The views expressed would certainly be useful for reiteration in the context of the facts of the present case:- “216. Under Section 170, the documents during investigation are required to be forwarded to the Magistrate, while in terms of Section 173(5) all documents or relevant extracts and the statement recorded under Section 161 have to be forwarded to the Magistrate. The investigating officer is entitled to collect all the material, which in his wisdom is required for proving the guilt of the offender. He can record statement in terms of Section 161 and his power to investigate the matter is a very wide one, which is regulated by the provisions of the Code. The statement recorded under Section 161 is not evidence per se under Section 162 of the Code. The right of the accused to receive the documents/statements submitted before the court is absolute and it must be adhered to by the prosecution and the court must ensure supply of documents/statements to the accused in accordance with law. Under the proviso to Section 162(1) the accused has a statutory right of confronting the witnesses with the statements recorded under Section 161 of the Code thus indivisible.
Supreme Court of India
Honourable Judges J.M. Panchal, R.V. Raveendran, K.G. Balakrishnan
Date of Judgment: 05 May 2010
Segment Number (Approximate Page Number): 48
Relevancy Score: 70.31
Subsequently, it was addressed in Kathi Kalu Oghad (supra.), at p. 37: "To bring the statement in question within the prohibition of Article 20(3), the person accused must have stood in the character of an accused person at the time he made the statement. It is not enough that he should become an accused, anytime after the statement has been made." 108. While there is a requirement of formal accusation for a person to invoke Article 20(3) it must be noted that the protection contemplated by Section 161(2), CrPC is wider. Section 161(2) read with 161(1) protects `any person supposed to be acquainted with the facts and circumstances of the case' in the course of examination by the police. The language of this provision is as follows: 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. 109. Therefore the `right against self-incrimination' protects persons who have been formally accused as well as those who are examined as suspects in criminal cases. It also extends to cover witnesses who apprehend that their answers could expose them to criminal charges in the ongoing investigation or even in cases other than the one being investigated. Krishna Iyer, J. clarified this position, (1978) 2 SCC 424, at p. 435: "The learned Advocate General, influenced by American decisions rightly agreed that in expression Section 161(2) of the Code might cover not merely accusations already registered in police stations but those which are likely to be the basis for exposing a person to a criminal charge. Indeed, this wider construction, if applicable to Article 20(3), approximates the constitutional clause to the explicit statement of the prohibition in Section 161(2). This latter provision meaningfully uses the expression `expose himself to a criminal charge'. Obviously, these words mean, not only cases where the person is already exposed to a criminal charge but also instances which will imminently expose him to criminal charges." It was further observed, Id. at pp. 451-452 (Para.
Supreme Court of India
Honourable Judges P.P. Naolekar, Lokeshwar Singh Panta
Date of Judgment: 03 Mar 2008
Segment Number (Approximate Page Number): 5
Relevancy Score: 70.14
Such statement may be used by an accused and with the permission of the Court by the prosecution to contradict the witness whose statement was recorded by the police in the manner provided under Section 145 of the Indian Evidence Act and can also be used for re- examination of such witness for the purpose only of explaining any matter referred to in his cross-examination. Bar of Section 162 Cr.P.C. of proving the statement recorded by the police officer of any person during investigation however shall not apply to any statement falling within the provision of clause (1) of Section 32 of the Evidence Act, nor it shall affect Section 27 of the Evidence Act. Bar of Section 162 Cr.P.C. is in regard to the admissibility of the statement recorded of a person by the police officer under Section 161 Cr.P.C. and by virtue of Section 162 Cr.P.C. would be applicable only where such statement is sought to be used at any inquiry or trial in respect of any offence under investigation at the time when such statement was made. 10. In the case of Khatri and Others v. State of Bihar & Ors., AIR 1981 SC 1068, this Court has held that Section 162 Cr.P.C. bars the use of any statement made before the police officer in the course of an investigation under Chapter XII, whether recorded in the police diary or otherwise. However, by the express terms of Section, this bar is applicable only where such statement is sought to be used `at any inquiry or trial' in respect of any offence under investigation at the time when such statement was made. If the statement made before a police officer in the course of an investigation under Chapter XII is sought to be used in any proceeding, inquiry or trial in respect of an offence other than which was under investigation at the time when such statement was made, the bar of Section 162 will not be attracted. 11. When the statement of Kalu was recorded by the police officers under Section 161 Cr.P.C. during the investigation of abduction case of a boy, Kalu was alive and thus that statement could be used in the subsequent investigation that was being made with respect to the alleged murder of Kalu. 12. It is then urged by the learned senior counsel that even on lifting of Section 162 bar, it by itself will not make the statement of Kalu recorded by the police admissible in evidence. Statement can be admitted in evidence only by virtue of any of the provisions contained in the Evidence Act. Therefore, even if the Section 162 bar would not apply to Kalu's 161 statement, would it be admissible in evidence. Then the next step would be to see as to under which provision of the Evidence Act, the same shall be admissible.
Supreme Court of India
Honourable Judges Mohan M. Shantanagoudar, A.M. Khanwilkar, Dipak Misra
Date of Judgment: 19 Apr 2017
Segment Number (Approximate Page Number): 4
Relevancy Score: 69.97
14. Be that as it may, as mentioned supra, right of the accused to cross examine the police officer with reference to the entries in the police diary is very much limited in extent and even that limited scope arises only when the Court uses such entries to contradict the police officer or when the police officer uses it for refreshing his memory and that again is subject to provisions of Sections 145 and 161 of the Indian Evidence Act. Thus, a witness may be cross-examined as to his previous statements made by him as contemplated under Section 145 of the Evidence Act if such previous statements are brought on record, in accordance with law, before the Court and if the contingencies as contemplated under Section 172(3) of Cr.P.C. are fulfilled. Section 145 of the Indian Evidence Act does not either extend or control the provisions of Section 172 of Cr.P.C. We may hasten to add here itself that there is no scope in Section 172 of the Cr.P.C. to enable the Court, the prosecution or the accused to use the police diary for the purpose of contradicting any witness other than the police officer, who made it. 15. In case of Malkiat Singh and others vs. State of Punjab[1], this Court while considering the scope of Section 172(3) Cr.P.C. with reference to Section 145 of the Indian Evidence Act observed thus:- “It is manifest from its bare reading without subjecting to detailed and critical analysis that the case diary is only a record of day to day investigation of the investigating officer to ascertain the statement of circumstances ascertained through the investigation. Under sub-section (2) the court is entitled at the trial or enquiry to use the diary not as evidence in the case, but as aid to it in the inquiry or trial. Neither the accused, nor his agent, by operation of sub-section (3), shall be entitled to call for the diary, nor shall he be entitled to use it as evidence merely because the court referred to it. Only right given thereunder is that if the police officer who made the entries in the diary uses it to refresh his memory or if the court uses it for the purpose of contradicting such witness, by operation of Section 161 of the Code and Section 145 of the Evidence Act, it shall be used for the purpose of contradicting the witness, i.e. Investigation Officer or to explain it in re-examination by the prosecution, with permission of the court. It is, therefore, clear that unless the investigating officer or the court uses it either to refresh the memory or contradicting the investigating officer as previous statement under Section 161 that too after drawing his attention thereto as is enjoined under Section 145 of the Evidence Act, the entries cannot be used by the accused as evidence.” 16. The police diary is only a record of day to day investigation made by the investigating officer. Neither the accused nor his agent is entitled to call for such case diary and also are not entitled to see them during the course of inquiry or trial.
Supreme Court of India
Honourable Judges Arijit Pasayat, S.H. Kapadia
Date of Judgment: 13 Feb 2007
Segment Number (Approximate Page Number): 4
Relevancy Score: 69.44
At this stage it will be necessary to take note of sub-section (b) of Section 173 Cr.P.C. which authorises the police officer to claim a sort of privilege in respect of any statement recorded under Section 161 Cr.P.C. after giving reasons as to why such statement may not be provided to the accused. Such privilege can only be claimed in respect of statement recorded under Section 161 Cr.P.C. and not in respect of what the officer records in the case diary i.e. the gist of the statement under Section 172 Cr.P.C. It will also be necessary to take note of Section 207 Cr.P.C. The Magistrate has to, in terms of that provision, provide to the accused, free of cost, copies of statements recorded under Section 161 (3) subject to the exceptions in terms of Section 173(6). A categorical statement has been made by the learned counsel for the appellant that the gist of the statement has not been produced by the prosecution to prove the guilt of the accused and the gists of the statements were not recorded in terms of Section 161 Cr.P.C. and accused has no right to ask for the gists of such statements if recorded under Section 172. At this juncture it would be necessary to take note of sub section (3) of Section 172 which provides that neither the accused nor his agents shall be entitled to call for such diaries meaning diary of proceedings in investigation nor shall he or they be entitled to see them merely because they are referred to by the Court. As rightly submitted by learned counsel for the appellant, in different States case diaries are maintained in different ways. Some States have a composite case diary which includes the statements recorded under Section 161 Cr.P.C. as well as the observations of the investigating officer under Section 172 Cr.P.C. This court, therefore, in Shamshul Kanwar's case (supra) held that the statements under Section 161 need to be separated from observations which are recorded under Section 172 in order to make available the statement under Section 161(3) to the accused. The position is entirely different here. Certain observations made by this Court in two recent cases also need to be noted. In Sunita Devi v. State of Bihar and Another [2005(1) SCC 608] it was observed at para 27 as follows: "The supervision notes can in no count be called. They are not a part of the papers which are supplied to the accused. Moreover, the informant is not entitled to the copy of the supervision notes. The supervision notes are recorded by the supervising officer. The documents in terms of Sections 207 and 208 are supplied to make the accused aware of the materials which are sought to be utilized against him. The object is to enable the accused to defend himself properly. The idea behind the supply of copies is to put him on notice of what he has to meet at the trial.
Supreme Court of India
Honourable Judges Sanjay Kishan Kaul, M.M. Sundresh
Date of Judgment: 04 Feb 2022
Segment Number (Approximate Page Number): 12
Relevancy Score: 68.75
The evidence is required for corroboration and contradiction of the other material witnesses as he is the one who links and presents them before the court. Even assuming that the investigating officer has not deposed before the court or has not cooperated sufficiently, an accused is not entitled for acquittal solely on that basis, when there are other incriminating evidence available on record. In Lahu Kamlakar Patil v. State of Maharashtra, (2013) 6 SCC 417, this Court held: “18. Keeping in view the aforesaid position of law, the testimony of PW 1 has to be appreciated. He has admitted his signature in the FIR but has given the excuse that it was taken on a blank paper. The same could have been clarified by the investigating officer, but for some reason, the investigating officer has not been examined by the prosecution. It is an accepted principle that non-examination of the investigating officer is not fatal to the prosecution case. In Behari Prasad v. State of Bihar [(1996) 2 SCC 317: 1996 SCC (Cri) 271], this Court has stated that non-examination of the investigating officer is not fatal to the prosecution case, especially, when no prejudice is likely to be suffered by the accused. In Bahadur Naik v. State of Bihar [(2000) 9 SCC 153: 2000 SCC (Cri) 1186] , it has been opined that when no material contradictions have been brought out, then non-examination of the investigating officer as a witness for the prosecution is of no consequence and under such circumstances, no prejudice is caused to the accused. It is worthy to note that neither the trial Judge nor the High Court has delved into the issue of non-examination of the investigating officer. On a perusal of the entire material brought on record, we find that no explanation has been offered. The present case is one where we are inclined to think so especially when the informant has stated that the signature was taken while he was in a drunken state, the panch witness had turned hostile and some of the evidence adduced in the court did not find place in the statement recorded under Section 161 of the Code. Thus, this Court in Arvind Singh v. State of Bihar, [(2001) 6 SCC 407: 2001 SCC (Cri) 1148], Rattanlal v. State of J&K [(2007) 13 SCC 18: (2009) 2 SCC (Cri) 349] and Ravishwar Manjhi v. State of Jharkhand [(2008) 16 SCC 561: (2010) 4 SCC (Cri) 50], has explained certain circumstances where the examination of investigating officer becomes vital. We are disposed to think that the present case is one where the investigating officer should have been examined and his non- examination creates a lacuna in the case of the prosecution.” Chance Witness: 26.A chance witness is the one who happens to be at the place of occurrence of an offence by chance, and therefore, not as a matter of course. In other words, he is not expected to be in the said place. A person walking on a street witnessing the commission of an offence can be a chance witness.
Supreme Court of India
Honourable Judges B.S. Chauhan, P. Sathasivam
Date of Judgment: 21 Jan 2011
Segment Number (Approximate Page Number): 17
Relevancy Score: 68.11
It was also pointed out that in his statement under Section 313 Cr.P.C. the accused person stated that he was beaten by the investigating agency. (b) Another instance relates to Mahadev Mahanta, Accused No. 11 who was arrested on 01.07.1999 by the investigating agency and he was remanded to police custody. However, on 08.07.1999, Accused No. 11 made a statement under Section 164 Cr.P.C. PW 55, I.O. has stated that the statement of the accused was recorded under Section 164 Cr.P.C. that he was under police custody and he was remanded back to police custody. In his statement under Section 313 Cr.P.C. he also stated that he was beaten by the investigating agency. (c) In the case of Turam Ho Accused No. 12, he was arrested on 13.05.1999 by the Investigating Agency and from 19.05.1999 to 23.05.1999 the accused person was in custody of the investigating agency. While so, on 21.05.1999, the accused No. 12 made a statement under Section 164 Cr.P.C and thereafter remanded back to police custody. It was pointed out that he also stated in his statement under Section 313 Cr.P.C. that he was beaten by the investigating agency. (d) The next instance relates to Umakanta Bhoi, Accused No. 13 who refused to make a statement under Section 164 Cr.P.C prayed by I.O. to be put for 16.03.1999 for recording statement. It was directed to jail authority to keep the accused under calm and cool atmosphere. A 13 was produced from Judicial Custody for recording statement under Section 164 Cr.P.C. and he refused to make a statement. However, on 31.08.1999, he made a confessional statement. (e) In the case of Dayanidhi Patra, Accused No. 14, on 21.09.1999, he was arrested by the Investigating Agency. On 24.09.1999, Learned ASJ granted police remand for 7 days i.e. on 01.10.1999 and that on that day A 14 made a statement under Section 164 Cr.P.C. It was pointed out that in his statement under Section 313 Cr.P.C. the accused person stated that he was beaten by the investigating agency. 21) Before analyzing the confessional statements of various accused persons and its applicability and the procedure followed by the Magistrate in recording the statement, let us consider various decisions touching these aspects. 22) In Bhagwan Singh and Ors. vs. State of M.P. (2003) 3 SCC 21, while considering these issues, it was held: "27......The first precaution that a Judicial Magistrate is required to take is to prevent forcible extraction of confession by the prosecuting agency (see State of U.P. v. Singhara Singh, AIR 1964 SC 358). It was also held by this Court in the case of Shivappa v. State of Karnataka, (1995) 2 SCC 76 that the provisions of Section 164 CrPC must be complied with not only in form, but in essence.
Supreme Court of India
Honourable Judges Arijit Pasayat, S.H. Kapadia
Date of Judgment: 13 Feb 2007
Segment Number (Approximate Page Number): 3
Relevancy Score: 68.1
With reference to Section 172 Cr.P.C. it is submitted that it does not contemplate recording of: (a) statement of witnesses; (b) gists of statement of witnesses. Therefore, recording of statement of witnesses in case diary would not confer such statement the protection granted under Section 172 Cr.P.C. Sections 161 and 172 Cr.P.C. read as follows: "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. Section 172: Diary of proceeding in investigation : (1) Every police officer making an investigation under this Chapter shall day by day enter his proceeding in the investigation in a diary, setting forth the time at which the information reached him, the time at which he began and closed his investigation, the place or places visited by him, and a statement of the circumstances ascertained through his investigation. (2) Any Criminal Court may send for the police diaries of a case under inquiry or trial in such court, and may use such diaries, not as evidence in the case, but to aid it in such inquiry or trial. (3) Neither the accused nor his agents shall be entitled to call for such diaries, not shall he or they are entitled to see them merely because they are referred to by the Court; but, if they are used by the police officer who made them to refresh his memory or if the Court uses them for the purpose of contradicting such police officer, the provisions of section 161 or section 145, as the case may be, of the Indian Evidence Act, 1872 (1 of 1872) shall apply. Under Section 161 Cr.P.C. the police officer may reduce into writing any statement made to him in the course of examination under that provision and if he does so he shall make separate and true record of the statement of each such person whose statement he records. The provision in other words authorizes the police officer to reduce into writing any statement made by a witness. In a given case the investigating officer may record circumstances ascertained during investigation in the case diary in terms of Section 172 Cr.P.C.
Supreme Court of India
Honourable Judges Swatanter Kumar, P. Sathasivam
Date of Judgment: 19 Apr 2010
Segment Number (Approximate Page Number): 56
Relevancy Score: 67.82
As we have already mentioned, for this purpose, he relied upon the position in England. 80) Currently, the position in England is governed by the Criminal Procedure and Investigations Act, 1996. Prior to this enactment, the position was squarely covered by common law. This position comes out primarily in two cases. In R. v Ward (Judith Theresa) (1993) 2 All E.R. 577, Court of Appeal held that it was the duty of the prosecution to ensure fair trial for both the prosecution and the accused. The duty of disclosure would usually be performed by supplying the copies of witness statements to the defense and all relevant experiments and tests must also be disclosed. It was held that the common law duty to disclose would cover anything which might assist the defense. Non-compliance with this duty would amount to "irregularity in the course of the trial" under Section 2(1)(a) of the Criminal Appeal Act, 1988. 81) In R v. Preston & Ors. (1993) 4 All ER 638, on which the appellants specifically relied upon, dealt with the non- disclosure of a telephonic conversation in a matter dealing with the Interception of Communications Act, 1985. The relevant material had been destroyed in pursuance of Section 6 of the same Act. In appeal, the defendants essentially argued that the non-disclosure of the contents of the call to the defense amounted to a material irregularity. The court held that it is true that the mere fact that the material was not to be used as evidence did not mean that the material was worthless, especially, when it might have been of assistance to the defendant. But at the same time, it was also held that: "since the purpose of a warrant issued under s.2(2)(b) of the 1985 Act did not extend to the amassing of evidence with a view to the prosecution of offenders, and since the investigating authority was under a duty under s.6 of the Act to destroy all material obtained by means of an interception as soon as its retention was no longer necessary for the prevention or detection of serious crime, the destruction of the documents obtained from the interception and their consequent unavailability for disclosure could not be relied upon by Defendants as a material irregularity in the course of their trial". Thus the position under common law is clear, i.e. subject to exceptions like sensitive information and public interest immunity, the prosecution should disclose any material which might be exculpatory to the defence. 82) In the Indian Criminal jurisprudence, the accused is placed in a somewhat advantageous position than under different jurisprudence of some of the countries in the world. The criminal justice administration system in India places human rights and dignity for human life at a much higher pedestal.
Supreme Court of India
Honourable Judges J.M. Panchal, R.V. Raveendran, K.G. Balakrishnan
Date of Judgment: 05 May 2010
Segment Number (Approximate Page Number): 74
Relevancy Score: 67.64
Ordinarily evidence is classified into three broad categories, namely oral testimony, documents and material evidence. The protective scope of Article 20(3) read with Section 161(2), CrPC guards against the compulsory extraction of oral testimony, even at the stage of investigation. With respect to the production of documents, the applicability of Article 20(3) is decided by the trial judge but parties are obliged to produce documents in the first place. However, the compulsory extraction of material (or physical) evidence lies outside the protective scope of Article 20(3). Furthermore, even testimony in oral or written form can be required under compulsion if it is to be used for the purpose of identification or comparison with materials and information that is already in the possession of investigators. 158. We have already stated that the narcoanalysis test includes substantial reliance on verbal statements by the test subject and hence its involuntary administration offends the `right against self-incrimination'. The crucial test laid down in Kathi Kalu Oghad, (supra.) is that of `imparting knowledge in respect of relevant fact by means of oral statements or statements in writing, by a person who has personal knowledge of the facts to be communicated to a court or to a person holding an enquiry or investigation' [Id. at p. 30]. The difficulty arises since the majority opinion in that case appears to confine the understanding of `personal testimony' to the conveyance of personal knowledge through oral statements or statements in writing. The results obtained from polygraph examination or a BEAP test are not in the nature of oral or written statements. Instead, inferences are drawn from the measurement of physiological responses recorded during the performance of these tests. It could also be argued that tests such as polygraph examination and the BEAP test do not involve a `positive volitional act' on part of the test subject and hence their results should not be treated as testimony. However, this does not entail that the results of these two tests should be likened to physical evidence and thereby excluded from the protective scope of Article 20(3). We must refer back to the substance of the decision in Kathi Kalu Oghad (supra.) which equated a testimonial act with the imparting of knowledge by a person who has personal knowledge of the facts that are in issue. It has been recognised in other decisions that such personal knowledge about relevant facts can also be communicated through means other than oral or written statements. For example in M.P. Sharma's case (supra.), it was noted that "...evidence can be furnished through the lips or by production of a thing or of a document or in other modes" [Id. at p. 1087]. Furthermore, common sense dictates that certain communicative gestures such as pointing or nodding can also convey personal knowledge about a relevant fact, without offering a verbal response.
Supreme Court of India
Honourable Judges J.S. Verma, B.N. Kirpal
Date of Judgment: 25 Oct 1996
Segment Number (Approximate Page Number): 4
Relevancy Score: 67.43
At this moment Sri S.L. Gupta, employees representative raised his objection to the procedure of reading the statement of the witnesses by bank representative previously recorded. With a view to offer equal opportunity to both the sides and to enable the bank to present the case in the proper manner, as a norm of the domestic enquiry, I allow this Procedure to continue and proceed further in the case. The statement of Dhannalal s/o Mangilal previously recorded by the CBI Inspector was read over to him by the bank representative. Sri Dhannalal admitted the contents of the statement. Cross examination by defence.........." According to the appellant in respect of Ashraf Ali also a similar procedure was followed. It is now well- settled that strict rules of evidence are not applicable and are not required to be followed in domestic inquiry [ e.g. see State of Haryana Vs. Rattan Singh 1982 (1) LLJ.46 ]. What has to be ensured is that the principles of natural justuce are complied with and the delinquent workman has the opportunity of defending himself. The statements under Section 161 Cr.P.C. may not be admissible in the criminal trial, but the said statemetns can be produced in a disciplinary inquiry like the present. The person who made the statement has been examined before the inquiry officer. It was open to the witness to have stated orally the entire contents of what was recorded in his statement under Section 161 Cr.P.C. Instead of following this time consuming procedure, the said statement recorded under Section 161 Cr.P.C. was read over to the witness who admitted the contents thereof. In this way the earlier statement under Section 161 Cr.P.C. became a part of the examination-in-chief of the witness before the Inquiry Officer. It is not in dispute that the said statements had been given to the respondent in advance and full opportunity was granted to the respondent to crossexamine the said witnesses. This being the case, it is difficult to appreciate as to how the High Court could have come to the conclusion that the inquiry proceedings stood vitiated.
Supreme Court of India
Honourable Judges A.M. Khanwilkar, S. Ravindra Bhat
Date of Judgment: 29 Oct 2020
Segment Number (Approximate Page Number): 14
Relevancy Score: 67.39
In other words, the mere fact of being in police custody at the time when the statement in question was made would not, by itself, as a proposition of law, lend itself to the inference that the accused was compelled to make the statement, though that fact, in conjunction with other circumstances disclosed in evidence in a particular case, would be a relevant consideration in an enquiry whether or not the accused person had been compelled to make the impugned statement. (2) The mere questioning of an accused person by a police officer, resulting in a voluntary statement, which may ultimately turn out to be incriminatory, is not “compulsion”. (3) “To be a witness” is not equivalent to “furnishing evidence” in its widest significance; that is to say, as including not merely making of oral or written statements but also production of documents or giving materials which may be relevant at a trial to determine the guilt or innocence of the accused. (4) Giving thumb impressions or impressions of foot or palm or fingers or specimen writings or showing parts of the body by way of identification are not included in the expression “to be a witness”. (5) “To be a witness” means imparting knowledge in respect of relevant facts by an oral statement or a statement in writing, made or given in court or otherwise. (6) “To be a witness” in its ordinary grammatical sense means giving oral testimony in court. Case law has gone beyond this strict literal interpretation of the expression which may now bear a wider meaning, namely, bearing testimony in court or out of court by a person accused of an offence, orally or in writing. (7) To bring the statement in question within the prohibition of Article 20(3), the person accused must have stood in the character of an accused person at the time he made the statement. It is not enough that he should become an accused, any time after the statement has been made.” (at pages 36-37) 18. It is important to note that conclusions (1) and (2) were made in the context of repelling a challenge to section 27 of the Evidence Act. M.P. Sharma (supra), so far as it held that a person is accused the moment there is a formal accusation against him, by way of an FIR or otherwise, and that statements made by such person outside court, whether oral or on personal knowledge of documents produced, is protected by Article 20(3), remained untouched. 19. It is also important to note that in Balkishan A. Devidayal (supra), these judgments were referred to, and the Court then concluded: “70. To sum up, only a person against whom a formal accusation of the commission of an offence has been made can be a person “accused of an offence” within the meaning of Article 20(3). Such formal accusation may be specifically made against him in an FIR or a formal complaint or any other formal document or notice served on that person, which ordinarily results in his prosecution in court.
Supreme Court of India
Honourable Judges P. Sathasivam, B.S. Chauhan
Date of Judgment: 21 Mar 2013
Segment Number (Approximate Page Number): 33
Relevancy Score: 67.26
The above said incident has also been witnessed and proved by an independent witness, viz. PW-211. Further, the credibility of the witness has not been shaken despite vigorous cross examination. Section 27 of the Indian Evidence Act: 61) This Court, while dealing with the law relating to Section 27 of the Indian Evidence Act observed about the possibility and plausibility of such recoveries as followed in State (NCT of Delhi) vs. Navjot Sandhu, (2005) 11 SCC 600 which are as under:- “142. There is one more point which we would like to discuss i.e. whether pointing out a material object by the accused furnishing the information is a necessary concomitant of Section 27. We think that the answer should be in the negative. Though in most of the cases the person who makes the disclosure himself leads the police officer to the place where an object is concealed and points out the same to him, however, it is not essential that there should be such pointing out in order to make the information admissible under Section 27. It could very well be that on the basis of information furnished by the accused, the investigating officer may go to the spot in the company of other witnesses and recover the material object. By doing so, the investigating officer will be discovering a fact viz. the concealment of an incriminating article and the knowledge of the accused furnishing the information about it. In other words, where the information furnished by the person in custody is verified by the police officer by going to the spot mentioned by the informant and finds it to be correct, that amounts to discovery of fact within the meaning of Section 27. Of course, it is subject to the rider that the information so furnished was the immediate and proximate cause of discovery. If the police officer chooses not to take the informant accused to the spot, it will have no bearing on the point of admissibility under Section 27, though it may be one of the aspects that goes into evaluation of that particular piece of evidence. 145. Before parting with the discussion on the subject of confessions under Section 27, we may briefly refer to the legal position as regards joint disclosures. This point assumes relevance in the context of such disclosures made by the first two accused viz. Afzal and Shaukat. The admissibility of information said to have been furnished by both of them leading to the discovery of the hideouts of the deceased terrorists and the recovery of a laptop computer, a mobile phone and cash of Rs 10 lakhs from the truck in which they were found at Srinagar is in issue.
Supreme Court of India
Honourable Judges B.R. Gavai
Date of Judgment: 19 Apr 2024
Segment Number (Approximate Page Number): 22
Relevancy Score: 66.99
When the accused while in custody makes such statement before the two independent witnesses (panch-witnesses) the exact statement or rather the exact words uttered by the accused should be incorporated in the first part of the panchnama that the investigating officer may draw in accordance with law. This first part of the panchnama for the purpose of Section 27 of the Evidence Act is always drawn at the police station in the presence of the independent witnesses so as to lend credence that a particular statement was made by the accused expressing his willingness on his own free will and volition to point out the place 2022 SCC Online SC 1400 where the weapon of offence or any other article used in the commission of the offence had been hidden. Once the first part of the panchnama is completed thereafter the police party along with the accused and the two independent witnesses (panch-witnesses) would proceed to the particular place as may be led by the accused. If from that particular place anything like the weapon of offence or blood stained clothes or any other article is discovered then that part of the entire process would form the second part of the panchnama. This is how the law expects the investigating officer to draw the discovery panchnama as contemplated under Section 27 of the Evidence Act. If we read the entire oral evidence of the investigating officer then it is clear that the same is deficient in all the aforesaid relevant aspects of the matter." (emphasis supplied) 65. Similar view was taken by this Court in the case of Ramanand @ Nandlal Bharti v. State of Uttar Pradesh6, wherein this Court held that mere exhibiting of memorandum prepared by the Investigating Officer during investigation cannot tantamount to proof of its contents. While testifying on oath, the Investigating Officer would be required to narrate the sequence of events which transpired leading to the recording of the disclosure statement.
Relevant High Court Judgments
Year From: 1980, Year To: 2024
Year From: 1980, Year To: 2024
Kerala High Court
Subair.T.P @ Subu vs Union Of India
Honourable Judges A.Hariprasad
Date of Judgment: 9 December 2019
Segment Number (Approximate Page Number): 7
Relevancy Score: 80.2
Section 161 Cr.P.C. deals with examination of witnesses by police in the following terms: "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 Crl.Appeal Nos.837, 1107, 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 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, section 376D, section 376E or section 509 of the Indian Penal Code (45 of 1860) is alleged to have been committed or attempted shall be recorded, by a woman police officer or any woman officer." Under this Section a police officer making an investigation can examine a person acquainted with the facts of the case and reduce the statement made by such person into writing. Fundamental principles that the statements recorded under this Section can only be used to contradict a witness as provided under Section 162 Cr.P.C. and the words "any person" occurring in the Section includes an accused person too are unchallengeable. Likewise, Section 161(3) gives a police officer an option to record true statement of a witness whom he had examined orally. This option must have been given to him because, normally, he might have examined many persons in the course of an investigation and all of them might not have furnished relevant information regarding the matters under investigation.
Allahabad High Court
Dilip And Others vs State Of U.P.
Honourable Judges Bala Krishna Narayana, Naheed Ara Moonis
Date of Judgment: 22 November 2019
Segment Number (Approximate Page Number): 16
Relevancy Score: 78.72
Before examining the aforesaid question, it would be useful to reproduce 161 and 162 Cr.P.C. and Section 145 of the Indian Evidence Act, 1872 :- Section 161 in The Code Of Criminal Procedure, 1973 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.
Andhra High Court
Registrar (Vigilance), High Court Of ... vs Station House Officer, Police Station ...
Honourable Judges S.B. Sinha, B. Subhashan Reddy, J. Chelameswar
Date of Judgment: 18 August 2001
Segment Number (Approximate Page Number): 11
Relevancy Score: 77.75
Section 161, Cr.PC reads as under: 161. Examination of witnesses by police I--(1) Any Police Officer making all 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 penally 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. 30. The Apex Court, in Nandini Satpathy v. P.L Dani, , while observing that Section 161 of Cr.PC does not only bring within its umbrage the witness, but also the accused held: "We hold that Section 161 enables the Police to examine the accused during investigation. The prohibitive sweep of Article 20(3) goes back to the stage of police interrogation - not, as contended, commencing in Court only.......The ban on self accusation and the right to silence, while one investigation or trial is under way goes beyond that case and protects the accused in regard to other offences pending or imminent, which may deter him from voluntary disclosure of criminatory matter. We are disposed to read 'compelled testimony' as evidence procured not merely by physical threats or violence but by physic torture, atmospheric pressure, environmental coercion, tiring interrogative prolixity, overbearing and intimidatory methods and the like - not legal penalty for violation. So, the legal perils following upon refusal to answer or answer truthfully, cannot be regarded as compulsion within the meaning of Article 20(3). The prospect of prosecution may lead to legal tension in the exercise of a constitutional right, but then, a stance of silence is running a calculated risk.
Delhi High Court
Virbhadra Singh & Anr vs Enforcement Directorate & Anr
Honourable Judges R.K.Gauba
Date of Judgment: 3 July 2017
Segment Number (Approximate Page Number): 72
Relevancy Score: 74.63
Section 161 Cr. P.C. which falls in the Chapter XII of Cr. P.C. relating to the powers of police to investigate reads, to the extent relevant here, as under: "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". 139. The moot question considered by the court was as to whether the police have the power under Sections 160 and 161 Cr. P.C. "to question a person who, then was or, in the future may incarnate as, an accused person". Referring to earlier decisions reported as Pakala Narayana Swami Vs. Emperor, AIR 1939 PC 47 and Mahabir Mandal Vs. State of Bihar, (1972) 1 SCC 748, the court ruled thus: "36. ... We hold that "any person supposed to be acquainted with the facts and circumstances of the case" includes an accused person who fills that role because the police suppose him to have committed the crime and must, therefore, be familiar with the facts. The supposition may later prove a fiction but that does not repel the section. ... Moreover, the suppositions accused figures functionally as a witness. "To be a witness", from a functional angle, is to impart knowledge in respect of a relevant fact, and that is precisely the purpose of questioning the accused under Section 161 CrPC. The dichotomy between "witnesses" and "accused" used as terms of art, does not hold good here ... The appellant squarely fell within the interrogational ring. To hold otherwise is to hold up investigative exercise, since questioning suspects is desirable for detection of crime and even protection of the accused. Extreme positions may boomerang in law as in politics." (emphasis supplied) 140. It is not correct to contend that investigation under PMLA dehors the procedure prescribed for police investigation under the general criminal law (Chapter XII of Cr.P.C.) would denude the process of crucial safeguards rendering it unfair or prone to misuse.
Kerala High Court
Subair.T.P @ Subu vs Union Of India
Honourable Judges A.Hariprasad
Date of Judgment: 9 December 2019
Segment Number (Approximate Page Number): 9
Relevancy Score: 74.38
First proviso to the Section clearly shows that when any witness is called for by the prosecution in an enquiry or trial, whose statement has been reduced into writing as mentioned in Section 162(1) Cr.P.C., any part of his statement, if duly proved, may be used by the accused, and with the permission of the court, by the prosecution also, to contradict such witness in the manner provided under Section 145 of the Indian Evidence Act, 1872 (in short, "Evidence Act"). It further says that when any part of such statement is so used, any part thereof may also be used in the re-examination of such witness, but, only for the purpose of explaining any matter referred to in his cross examination. Indisputable proposition is that the statements under Section 161 Cr.P.C. cannot be used for corroboration of evidence of a witness in court. Crl.Appeal Nos.837, 1107, However, in a criminal trial, recording statement by the investigating officer by examining orally any person found to be acquainted with the facts and circumstances of the case is extremely important. Likewise, in the better interest of the accused, some restrictions are imposed by the proviso to Section 162(1) Cr.P.C. regarding the us of such statements. 17. Sri.K.S.Madhusoodanan, Sri.V.T.Raghunath and Sri.Vipin Narayanan, learned counsel appearing for the accused, contended in unison that unless statements of the witnesses recorded under Section 161 Cr.P.C. are provided to them either for claiming discharge or for cross examining all the prosecution witnesses by properly shaping up a defence, the accused will suffer irreparable prejudice. According to them, denial of such statements will tantamount to thwarting a fair trial. 18. There cannot be a dispute that in an adversarial system, which we follow in this country, the accused has every right to understand beforehand the nature of allegations made by the prosecution against them and also the materials on which they intend to prove their guilt during trial. Nevertheless, in cases of this nature, whether NIA could claim a right to withhold certain materials from the accused for a limited time is the question to be answered. No doubt, such materials cannot be permanently withheld by the agency. Generally speaking, the argument raised by the learned counsel as above is well founded. Can there be any exceptions? We shall consider.
Delhi High Court
Delhi High CourtVishal Yadav vs State Of U.P.
Honourable Judges Gita Mittal, J.R. Midha
Date of Judgment: 2 April 2014
Segment Number (Approximate Page Number): 123
Relevancy Score: 73.01
350. In this regard, Mr. Dayan Krishnan has placed the pronouncement of the Supreme Court reported at (2000) 4 SCC 484, Jaswant Singh v. State of Haryana before us. The observations of the Supreme Court in paras 47 to 49 with regard to the scope of Section 161 and 162 of the Cr.P.C. are material and read as follows:- €•47. Section 161(2) of the Code requires the person making the statements €•to answer truly all questions relating to such case put to him by such officer....€–. It would, therefore, depend on the questions put by the police officer. It is true that a certain statement may now be used under Section 162 to contradict such witness in the manner provided by Section 145 of the Indian Evidence Act, 1872. Previously, the law was as enunciated in Tehsildar Singh v. State of Uttar Pradesh AIR 1959 SC 1012: 1959 Supp. (2) SCR 875: 1959 Cri LJ 1231 as omissions, unless by necessary implication be deemed to be part of the statement, cannot be used to contradict the statement made in the witness- box. 48. Now the Explanation to Section 162 provides that an omission to state a fact in the statement may amount to contradiction. However, the explanation makes it clear that the omission must be a significant one 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. 49. Reading Section 161(2) of the Criminal Procedure Code with the Explanation to Section 162, an omission in order to be significant must depend upon whether the specific question, the answer to which is omitted, was asked of the witness. In this case the Investigating Officer, PW 13 was not asked whether he had put questions to Gurdeep Kaur asking for details of the injuries inflicted or of the persons who had caused the injuries.€– (Emphasis supplied) 351. Given the prescription of Section 161 of the Cr.P.C. and the above enunciation of law, if the testimony of a witness is to be challenged on the ground that it contains improvements over the statement made by him under Section 161 of the Cr.P.C., it would be essential to question the investigating officers as to whether a question with regard to the same was put by him to the witness or not.
Allahabad High Court
Devendra Mohan vs C.B.I/Eou-Iv/New Delhi
Honourable Judges Sunil Hali
Date of Judgment: 19 February 2013
Segment Number (Approximate Page Number): 28
Relevancy Score: 72.7
Question that calls for consideration at this stage is as to whether the persons who are named in the FIR as accused can be listed as witnesses of prosecution after the conclusion of investigation. Section 161 Cr.P. C. provides for Examination of witnesses by police, which reads as under:- (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. The import of the section clearly indicates that the police officer can examine any person who is supposed to be acquainted with the facts of the case. At this stage, there are no limitations imposed upon the Investigating Officer to examine any persons which may include a person who is suspected accused also. To be a witness from functional angle is to impart knowledge in respect of relevant facts i.e. precisely purpose of questioning the accused under Section 161 Cr.P.C. At this stage, the Investigating Officer is only to collect the evidence from a person who is acquainted with the facts of the case. There is no dichotomy at this stage between the accused and a witness. The only limitation placed herein is that the persons is not bound to answer all questions relating to such case put to him by such officer other than the question, answer to which would have a tendency to expose him in a criminal charge. At the time of initiation of investigation and recording of statement under Section 161 Cr.P.C. the Investigating Officer is in the process of collecting material which throws light on the commission of the offence irrespective of the fact whether any body has been named as accused in the FIR or not.
Allahabad High Court
Prem Singh Prajapati vs State Of U.P. And Another
Honourable Judges N/A
Date of Judgment: 17 May 2024
Segment Number (Approximate Page Number): 39
Relevancy Score: 71.8
A reference is also drawn to Sections 161 and 162 of Criminal Procedure Code, 1973 which read as under : "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 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 376A, section1 376AB, section 376B, section 376C, section 376D, section 376DA, section 376DB, 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."
Delhi High Court
Dinesh Puri vs State ( Govt Of Nct Of Delhi)
Honourable Judges Mukta Gupta
Date of Judgment: 23 September 2016
Segment Number (Approximate Page Number): 5
Relevancy Score: 71.68
207. The provisions of Section 173(5) contemplate and make it obligatory upon the investigating officer where the provisions of Section 170 apply to forward to the Magistrate along with his report, all documents or relevant extracts thereof on which the prosecution proposes to rely other than those already sent to the Magistrate during investigation in terms of Section 170(2) of the Code. During investigation the statement recorded under Section 161 of all the persons whom the prosecution proposes to examine as witnesses shall also be sent to the Magistrate. Some element of discretion is vested with the police officer under Section 173(6): where he is of the opinion that any such statement is not relevant to the subject-matter of the proceedings or its disclosure to the accused is not essential in the interests of justice and is inexpedient in the public interest, he shall indicate that part of the statement requesting a Magistrate (sic to exclude) that part from the copies to be granted to the accused and stating his reason for making such a request. Sub-section (7) of the same section is indicative of another discretion given to the police officer under law that where he finds it convenient, he may furnish the copy of documents referred to in sub-section (5) of the section. 216. Under Section 170, the documents during investigation are required to be forwarded to the Magistrate, while in terms of Section 173(5) all documents or relevant extracts and the statement recorded under Section 161 have to be forwarded to the Magistrate. The investigating officer is entitled to collect all the material, which in his wisdom is required for proving the guilt of the offender. He can record statement in terms of Section 161 and his power to investigate the matter is a very wide one, which is regulated by the provisions of the Code. The statement recorded under Section 161 is not evidence per se under Section 162 of the Code. The right of the accused to receive the documents/statements submitted before the court is absolute and it must be adhered to by the prosecution and the court must ensure supply of documents/statements to the accused in accordance with law. Under the proviso to Section 162(1) the accused has a statutory right of confronting the witnesses with the statements recorded under Section 161 of the Code thus indivisible.
Madras High Court
The Inspector Of Police vs K.C.Palanisamy
Date of Judgment: 14 October 2011
Segment Number (Approximate Page Number): 9
Relevancy Score: 71.41
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." 18. It is needless to point out that the Hon'ble Supreme Court has held that the expression "any person" as employed in Section 161 of the Code of Criminal Procedure includes an accused also. [vide Nandini Satpathy's case]. Therefore, according to Section 161(2) of the Code of Criminal Procedure, an accused is bound to answer truly all the questions relating to the case put by the Investigating Officer during interrogation, however, he is not bound to answer the questions, answer to which would have a tendency to expose him to a criminal charge or to a penalty or forfeiture. 19. Article 20(3) of the Constitution of India states that no person accused of any offence shall be compelled to be a witness against himself. While interpreting Article 20(3) of the Constitution of India, the Hon'ble Supreme Court in State of Bombay vs. Kathi kalu Oghad reported in AIR 1961 SC 1808, has held that the said right extends not only during the proceedings before the Court, but during the period of investigation as well. In other words, during the course of investigation, an accused cannot be compelled to make any statement which is likely to incriminate him. However, for an accused, the freedom to keep silence emanating from Article 19(1)(a) of the Constitution of India is subject to the reasonable restrictions provided in Section 161(2) of the Code of Criminal Procedure. Thus, if an accused is sought to be interrogated by the police, he is bound to answer truly all the questions relating to the case and he cannot claim that he has got absolute right to keep silence, and so, he will not make any statement during interrogation. The only exception is that he need not answer any question, answer to which is likely to incriminate him.
Gujarat High Court
Gujarat High CourtNaresh Agarsinh Chhara @ Nariyo vs State Of Gujarat
Honourable Judges Harsha Devani, A.S. Supehia
Date of Judgment: 20 April 2018
Segment Number (Approximate Page Number): 2080
Relevancy Score: 71.24
A perusal of the testimony of Shri V.V. Chaudhary shows that despite the fact that he had not recorded the statements of the above persons, extracts of their statements recorded under section 161 of the Code have been brought on record, in complete violation of the provisions of section 162 of the Code which completely bar the use of any statement recorded under section 161 of the Code except to the extent provided there under, viz. to contradict a witness in the manner provided under section 145 of the Evidence Act. Accordingly, the Investigating Officer can only prove that part of the statement by which the witness is contradicted. It goes without saying, therefore, that if a witness has not been examined by the prosecution, the question of the Investigating Officer proving the statement of such witness would not arise. The course permitted to be adopted by the trial court therefore is not legally permissible. The learned counsel for the applicant has relied upon that part of the evidence of the said Investigating Officer, whereby he has admitted the statements recorded under section 161 of the Code by another Investigating Officer in another case, of persons who are not examined as witnesses in the present case. 325.11 At this juncture it may be germane to refer to the following extract from the decision of the Bombay High Court in Raghunath Krishna Mujumale and others v. the State of Maharashtra, (supra) which aptly describes the situation in the present case: "21. We would like to stress that Public Prosecutors also owe a duty to trial courts in this regard, to raise legitimate objection to the admission of insignificant or otherwise irrelevant omissions. Most often than not, the job is left exclusively to the trial Judge who may also- consciously or unconsciously be tempted to choose the path of least resistance by admitting all sorts of omissions on record. Needless to point out, such expedients often cause miscarriage of justice, apart from being against the provisions of law. We would also like to advert to the last part of the proviso to section 162(1) Cr.P.C. which empowers a Prosecutor to use any part of the police statement in the re-examination of a witness, for the purpose of explaining any matter brought forth by the defence in cross-examination by providing a contradiction.
Kerala High Court
K.M.Sujith vs State Of Kerala
Honourable Judges K.Balakrishnan Nair, P.Bhavadasan
Date of Judgment: 21 October 2009
Segment Number (Approximate Page Number): 9
Relevancy Score: 71.13
SN 103), wherein it was held as follows: "Previous statement of witnesses alleged to have been given by him before the police, and denied by him, is not part of his testimony. Hence, the learned Sessions Judge committed a fundamental error in accepting the prosecution case solely based on the evidence of the investigating officer as his version is corroborated by the previous statement given to the police officer by the witnesses. Under no circumstances, statements recorded under S.161 can be used to corroborate the evidence of investigating officer. All previous statements of witness to the police are not admissible in evidence for any purpose and there is absolute ban regarding acceptance of such evidence except as allowed by S.162 Cr.P.C., viz., contradiction of a prosecution (1) by the accused; (2) by the prosecution themselves with permission of the Court; (3) statements coming under S.32 of the Evidence Act; and (4) for the purpose of S.27 of the Evidence Act. Police statement given by one witness cannot be used to contradict or corroborate the evidence of any other witnesses. S.162 Cr.P.C., is a special law and notwithstanding Ss.145 and 157 of the Evidence Act, the above section completely prohibits the admission of evidence of alleged statements recorded by the police officer in the course of investigation except for the strictly limited purpose as provided in the provisions of S.162 itself. Previous statement to the police can be used to contradict the witnesses in the manner provided in the section only if the 'statement is duly proved'. There is no presumption of genuineness of the statements reduced to writing by the police. Investigating Officer can only depose the investigation he has conducted. But finding of guilt solely based on the evidence of the investigating officer regarding previous statements of witnesses cannot be justified." 22. In the decision reported in Rajendra Singh v. State of U.P. ((2007) 7 SCC 378) it was held as follows: "The High Court has basically relied upon the statements of six witnesses which had been recorded by the investigating officer under Section 161 Cr.P.C. to record a positive finding that the respondent could not have been present at the scene of commission of the crime as he was present in a meeting of Nagar Nigam at Allahabad. A statement under Section 161 Cr.P.C. is not a substantive piece of evidence.
Allahabad High Court
Ajay Diwakar vs State Of U.P. And 3 Others
Honourable Judges Saurabh Shyam Shamshery
Date of Judgment: 3 May 2023
Segment Number (Approximate Page Number): 12
Relevancy Score: 71.03
43. This Court in Mohd. Imran Khan v. State (Govt. of NCT of Delhi), (2011) 10 SCC 192, observed as under while noting the effect of objectionable features and infirmities on criminal investigations: "31. The investigation into a criminal offence must be free from all objectionable features or infirmities which may legitimately lead to a grievance to either of the parties that the investigation was unfair or had been carried out with an ulterior motive which had an adverse impact on the case of either of the parties. The investigating officer is supposed to investigate an offence avoiding any kind of mischief or harassment to either of the party. He has to be fair and conscious so as to rule out any possibility of bias or impartial conduct so that any kind of suspicion to his conduct may be dispelled and the ethical conduct is absolutely essential for investigative professionalism. The investigating officer "is not merely to bolster up a prosecution case with such evidence as may enable the court to record a conviction but to bring out the real unvarnished truth". (Emphasis supplied) 22. This Court has also discussed law with regard to statement recorded under Section 161 of Code in Application under Section 482 No. - 23696 of 2022 , Faisal Ashraf vs. State of U.P. and others, decided on 22.12.2022 and relevant paragraphs no. 6 to 11 are reproduced as under: "6. Before adverting to rival submissions, it will be relevant to quote relevant Section 161 Cr.P.C. "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."
Punjab-Haryana High Court
Navdeep Kaur vs State Of Punjab And Others
Honourable Judges Lisa Gill
Date of Judgment: 1 June 2023
Segment Number (Approximate Page Number): 6
Relevancy Score: 70.55
17 CWP No.9803 of 2023 The question posed Q) Section 162 of The Petitioner states that the A pertains to Section 162 A the Code of protection under Section 162 is CrPC. Sections 161 and Criminal given to both the accused as well as 162 CrPC relate to the oral Procedure, 1973 witnesses. So the marks should be examination of witnesses is for the given to the candidates who mark by the police, the record to protection of- Option A or Option B. be made of their statement A) Accused and the use to which it may B) Witnesses be put subsequently. The C) Police officer provisions primarily D) Magistrate protect the interest of the accused and creates an 10 of 51 Neutral Citation No:=2023:PHHC:080579-DB 2023:PHHC:080579-DB CWP Nos.11695 of 2023 (O&M) and connected petitions 11 absolute bar against the previous statement made before the police officer being used for any purpose whatsoever except provided in the proviso and 162(2). There is no reference to the word "witness" in section 162(1) CrPC. The proviso refers to a witness in the context of use of his previous statement, if any suffered by him to the police officer. The bar against obtaining signature of the person being examined by the police officer, if his statement is recorded in writing, is meant to protect the interest of accused from being prejudicially affected by any dishonest or questionable methods adopted by police officer. Statements recorded under Section 161 CrPC, reduced into writing, if duly proved, may be used by the accused to contradict such witness and the procedure for contradiction is stipulated in Sections 145 Evidence Act, 1872. The prosecution may with the permission of Court, in certain circumstance, use the statement under Section 161 CrPC to contradict the witness and when any part of such statement is so used, any part thereof may also be used in the re-examination of such witness for the purpose of explaining any matter referred to in his cross-examination. The panel has gone through the all the above judgments and has found nothing in the said judgments suggesting that Section 162 CrPC is meant for the protection of witness. The reasoning assigned by the objectors is found to be untenable. The aforesaid view is also supported by the commentary of "Sohoni's Code of Criminal Procedure 21st Edition, Justice ML Singhal, volume 2, LexisNexis pp.
Jammu & Kashmir High Court
Suomoto Proceedings In Flesh Trade vs State And Ors.
Date of Judgment: 8 October 2007
Segment Number (Approximate Page Number): 36
Relevancy Score: 70.41
This view appears to have been taken in a decision of this Court in Criminal Revn. No. 640 of 1956 to which I was a party. In another judgment "State v. Jagadish Pandey" reported as AIR 1958 Cat. 31; the view taken was as under: (3) Section 173(4) of the Code of Criminal Procedure provides that the officer-in-charge of the police station shall, before the commencement of the inquiry of trial, furnished or cause to be furnished to the accused, free of cost, a copy of the report forwarded under Sub-section (1), of the first information report recorded under Section 154 and of all other documents or relevant extracts thereof, on which the prosecution proposes to rely, including the statements and confessions, if any, recorded under Section 164, and the statements recorded under Sub-section (3) of Section 161 of all persons whom the prosecution proposes to examine as its witnesses. The learned Magistrate seems to think that this is a provision designed to benefit the accused person by giving him an advance copy of the statements which the witnesses have made against him during investigation. Obviously copies of all police papers, including the first information report and confessions and statements of witnesses examined by the police during investigation are intended to be given to the accused for his benefit. The question arises whether this provision of the law implies that the prosecution is prevented from calling any witnesses at the trial who has not been examined by the police or whose statement has not been recorded by them under Section 161 of the Code. In my view, it was not the invention of the legislature to shut out relevant evidence by enacting Sub-section (4) of Section 173 of the Code. The purpose might have been to benefit the accused by giving him in advance, copies of the documents and statements referred to in the Sub-section; but that could not possibly have the effect of preventing the prosecution from calling other competent evidence at the trial. (4)...The question arises whether in view of Sub-section (7) of Section 251-A, the prosecution is to be limited to examining only such persons as have already been examined by the police and whose statements have been recorded in accordance with the provisions of Section 161(3) of the Code.
Karnataka High Court
Sri. Mareappa S/O Tippanna vs The State Of Karnataka & Ors
Honourable Judges B.Veerappa
Date of Judgment: 5 June 2017
Segment Number (Approximate Page Number): 19
Relevancy Score: 70.36
CqÀPÀ (11) ¸Ã€»/- ¥Ã‰Ã‡°Ãƒ¸Ã¯ C¢Ã¼ÃƒPÀëPg À ÀÄ PÀ®§Ã„gÀV gÀªg À À ¥Ã€gªÃ€ ÃV UÉ, ¹.¦.L. eÉêÀVð ªÃ€ÃˆvÀÛ PÀbÉÃj In spite of the same the 4th Respondent has not registered the case. 27. Section 161 of Code of Criminal Procedure deals with examination of witnesses by police which reads as under; 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. 28. A plain reading of the said provision makes it clear that any police officer making an investigation under this chapter or any police officer of such rank as the State Government may by general or special order prescribed 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.
Delhi High Court
Delhi High CourtVishal Yadav vs State Of U.P.
Honourable Judges Gita Mittal, J.R. Midha
Date of Judgment: 2 April 2014
Segment Number (Approximate Page Number): 119
Relevancy Score: 70.25
341. Before the learned trial judges as well as before this court, the appellants have strongly canvassed the submission that Nilam Katara, mother of the deceased as well as Nitin Katara, brother of the deceased have made improvements in the court testimony over their statements recorded under Section 161 of the Cr.P.C. which was reason sufficient for disbelieving these two witnesses. 342. We find that in the cross-examination of these witnesses they have only been confronted with their statements under Section 161 of the Cr.P.C. in matters of detail. There is no cross-examination on their substantive evidence at all. 343. Before proceeding to examine the contentions laid by ld. senior counsels for Vikas and Vishal Yadav as well as ld. counsel for Sukhdev @ Pehalwan , it is essential to consider the scope of Section 161 of the Cr.P.C. This statutory provision empowers any police officer making an investigation under this Chapter, or any police officer not below such rank as the State Government to, by general or special order, prescribed in this behalf, acting on the requisition of such officer, to examine orally any person supposed to be acquainted with the facts and circumstances of the case. 344. Section 161(2) of the Cr.P.C. mandates that €•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€–. 345. So far as the purpose for which such statements could be utilized, reference has to be made to Section 162 of the Cr.P.C. which permits use of statement only for inquiry or trial as per the procedure provided in the section. As per the explanation to Section 162 of the Cr.P.C. "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."
Allahabad High Court
Afjal Ansari vs State Of U.P.
Honourable Judges Sanjay Kumar Singh
Date of Judgment: 29 July 2024
Segment Number (Approximate Page Number): 37
Relevancy Score: 70.0
17. At the same time, it being the earliest record of the statement of a witness soon after the incident, any contradiction found therein would be of immense help to an accused to discredit the testimony of a witness making the statement. The section was, therefore, conceived in an attempt to find a happy via media, namely, while it enacts an absolute bar against the statement made before a police- officer being used for any purpose whatsoever, it enables the accused to rely upon it for a limited purpose of contradicting a witness in the manner provided by section 145 of the Evidence Act by drawing his attention to parts of the statement intended for contradiction. It cannot be used for corroboration of a prosecution or a defence witness or even a Court witness. Nor can it be used for contradicting a defence or a Court witness. Shortly stated, there is a general bar against its use subject to a limited exception in the interest of the accused, and the exception cannot obviously be used to cross the bar." 84- The Apex Court in the case of V.K. Mishra & Another vs. State of Uttrakhand & Another, AIR 2015 SC 3043 has also held as under:- 15. Section 162 Cr.P.C. bars use of statement of witnesses recorded by the police except for the limited purpose of contradiction of such witnesses as indicated there. The statement made by a witness before the police under Section 161(1)Cr.P.C. can be used only for the purpose of contradicting such witness on what he has stated at the trial as laid down in the proviso to Section 162 (1) Cr.P.C. The statements under Section 161 Cr.P.C. recorded during the investigation are not substantive pieces of evidence but can be used primarily for the limited purpose:- (i) of contradicting such witness by an accused under Section 145 of Evidence Act; (ii) the contradiction of such witness also by the prosecution but with the leave of the Court and (iii) the re-examination of the witness if necessary. 85- It is also well settled in plethora of cases that unless the omission in statement recorded under Section 161 Cr.P.C. of a witness is significant and relevant having regard to context in which omission occurs, it will not amount to contradiction of evidence of witness recorded in Court.
Allahabad High Court
Ranjeet @ Jamidar vs State Of U.P.
Date of Judgment: 7 November 2019
Segment Number (Approximate Page Number): 7
Relevancy Score: 69.98
Sections 161 and 162 of the Cr.P.C. read as under:- "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 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 354-A, Section 354-B, Section 354-C, Section 354-D, Section 376, [Section 376-A, Section 376-AB, Section 376-B, Section 376-C, Section 376-D, Section 376-DA, Section 376-DB], Section 376-E or Section 509 of the Indian Penal Code (45 of 1860) 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 to 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 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 (1 of 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 this 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 (1 of 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
Himachal Pradesh High Court
Pankaj vs State Of Himachal Pradesh
Honourable Judges Sureshwar Thakur, Jyotsna Rewal Dua
Date of Judgment: 12 July 2019
Segment Number (Approximate Page Number): 11
Relevancy Score: 69.8
There is total embargo in Section 162 Cr.P.C. for such usage with an exception in Section 162(2) Cr.P.C., that is, when the author of the statement dies it becomes his dying declaration under Section 32(1) of the Evidence Act. The section 161 statement can be used by the accused to contradict and impeach the credibility of the witness by the accused. It can be used by the accused in his favour. It cannot be used by the prosecution as against him. [See Sections 145, 155, 157 Evidence Act]. 39.Although the statement of a witness recorded under Section 164 Cr.P.C. during investigation is also a previous statement like a statement recorded under Section 161 Cr.P.C., but, it has some higher value than the statement recorded under Section 161 Cr.P.C. by the police since it was recorded by a Magistrate. 40. With regard to the statement of a witness recorded by a Magistrate u/s.164 Cr.P.C., in RAMPRASAD VS. STATE OF MAHARASHTRA [1999 CRI.L.J. 2889 (SC)], the Hon'ble Apex Court observed as under : . "15. Be that as it may, the question is whether the Court could treat it as an item of evidence for any purpose. Section 157 of the Evidence Act permits proof of any former statement made by a witness relating to the same fact before any authority legally competent to investigate the fact but its use is limited to corroboration of the testimony of such a witness. Though a police officer is legally competent to investigate, any statement made to him during such an investigation cannot be used to corroborate the testimony of a witness because of the clear interdict contained in Section 162 of the Code. But a statement made to a Magistrate is not affected by the prohibition contained in the said section. A Magistrate can record the statement of a person as provided in Section 164 of the Code and such a statement would either be elevated to the status of Section 32 if the maker of the statement subsequently dies or it would remain within the realm of what it was originally. A statement recorded by a Magistrate under Section 164 becomes usable to corroborate the witness as provided in Section 157 of the Evidence Act or to contradict him as provided in Section 155 thereof." 41.In GURUVINDAPALLI ANNA RAO VS. STATE OF A.P. [2003 CRI.L.J.
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