Third Lecture CRPC :Position as to 162 and allied sections which elucidate its scope.

Object of 161 is to obtain evidence which may be later produced at the trial.

A person examined under 161 is bound to answer truly all question other than the nature of questions which are self incriminatory in nature

The protection is afforded both by section 161 (2) Cr.PC and article 20 (3) of the constitution. (statements recorded under section 161 of the Code of Criminal Procedure cannot be used as substantive evidence either in favour of or against the accused. Such statements can be used only to test credibility of prosecution witnesses. statement recorded in the course of investigation by police cannot be a subject matter of cross-examination unless the person has been examined as prosecution witness before the Court and his statement is brought in evidence for the purpose of contradicting such witness or to point out the omission in his former statement before the police. "Duly proved " as used under section 162 of Cr.PC would mean he has to be examined as prosecution witness inside the court first . Statements recorded under section 161 cannot be used for corroboration or as a substantive evidence.)

Effect of recording a joint statement?

Tilkeshwar Singh And Others vs The State Of Bihar on 8 December, 1955

The I.O. may reduce into writing any statement made to him during course of examination and if he does so he shall make a separate and true account of all statements , for if he only records one joint statement of several witneses that would not render evidence inadmissible, but rather it would greatly affect the weight attached to their evidence.

Statement are to be recorded as far as possible in the words of the accused and it should not be indirect or boiled form of speech , otherwise it will affect the credibility of such statement .

161 (2) is to be read with , 177 ,202 IPC as well but more specifically it will be covered under 179 IPC.

Effect of delay on examination?

There should not be unnecessary delay on part of investigative authorities , otherwise evidence may become suspect but where delay is explained and court accepts the explanation , it won't be of material nature . (Bodhraj v. State of Jammu and Kashmir AIR 2002 SC 3164)

162 (It does not apply to civil or writ proceedings vide khatri v. state of bihar , also it will not apply on maintenance proceedings or proceedings relating to disposal of property)

Effect of obtaining signature?

Although , 162 contains express bar as to signature on statement made to police officer , however if such statement is obtained , it would not vitiate the proceedings.

State of UP V. M.K. Anthony AIR 1985 SC 48

If officer obtains signature of a witness on his recorded statement , the evidence of the witness is not thereby rendered inadmissible . It merely puts court on guard and may necessitate an indepth scrunity.

Evidentiary value ?

Statement recorded under 161 are not substantive evidence , they are not given on oath , neither made during trial nor tested by cross examination.

Statement recorded under 161 can only be used for contradiction , and in accordance with section 145 of Evidence act .

Exceptions cannot override general rule itself, so it must be borne in mind that bar under 162 is in nature of the right guaranteed to the accused and must be strictly followed

Three conditions can be gathered from the section :-

1 - Statement must be reduced into writing

2- Witness must be called for the prosecution

3 - the written statement must be duly proved.

(With exception being statements under section 27 and statement under section 32 of Indian Evidence Act .)

Statement includes both the express and implied statements made by the witness .

(Railyway protection force and Custom officers are not police officers)

However , a tape recorded statement is outside the purview of section 162 . RM malkani and yusufali case laws will elaborate on that point.

R. M. Malkani vs State Of Maharashtra on 22 September, 1972

Equivalent citations: 1973 AIR 157, 1973 SCR (2) 417

The tape-recorded conversation is not within the vice

of s. 162 of Cr. P. C. It was said that the tape-recording

was in the course of investigation. S. 161 and 162 of the

Cr.P.C. indicate that there is investigation when the police

officer orally examine a person. The telephonic con-

versation was between Dr. M and the appellant, Each spoke to

the other. Neither made a statement to the police officer.

Therefore, there was no mischief of s. 1 62

The appellant's conversation was voluntary. There was no compulsion. The attaching of the tape recording instrument was unknown to the appellant. That fact does not render the evidence of conversation inadmissible. The appellant's conversation was not extracted under duress or compulsion. If the conversation was recorded on the tape it was a mechanical contrivance to play the role of an eavesdropper. In R. v. Leatham(1) it was said "It matters not how you get it if you steal it even, it would be admissible in evidence".. As long as it is not tainted by an inadmissible confession of guilt evidence even if it is illegally obtained is admissible. There is no scope for holding that the appellant was made to incriminate himself. At the time of the conversation there was no case against the appellant. He was not compelled to speak or confess. Article 21 was invoked by submitting that the privacy of the appellant's conversation was invaded.. Article 21 contemplates procedure established by law with regard to deprivation of life or personal liberty. The telephonic conversation of an innocent citizen will be protected by Courts against wrongful or high handed' interference by tapping the conversation. The protection is not for the guilty citizen against the efforts of the police to vindicate the law and prevent corruption of public servants. It must not be understood that the Courts will tolerate safeguards for the protection of the citizen to be imperiled by permitting the police to proceed by unlawful or irregular methods. In the present case there is no unlawful or irregular method in obtaining the tape recording of the conversation.

Supreme Court of India

Yusufalli Esmail Nagree vs The State Of Maharashtra on 19 April, 1967

There was other evidence showing that the tape recording was

not tampered with. The fact that the defence did not

suggest any tampering lends assurance to the credibility of

the other evidence. The courts below rightly held that the

tape recorder faithfully recorded and reproduced the actual

conversation.The use of the statements of both S and the

appellant when the trap was laid, was not barred by s. 162

of the Code of Criminal Procedure. 'The appellant was not making a

statement to the sub-inspector of police or to any other

police officer. He was not even aware that any police

officer was listening to him. He was talking to S. No doubt

S was a police decoy assisting the police in their

investigation, but the statement of the appellant to S while

making another offer of a bribe cannot be regarded as a

statement by him to the police. Nor can the words uttered

by S be regarded as a statement to the police. S was

talking to the appellant. He knew that what he said was

being recorded for subsequent use by the police officers.

But he was not speaking to any police officer.There was a

dialogue in which. S and the appellant took part. Each

spoke to the other, but neither made a statement to a police

officer.

The appellant was not right in claiming protection under

Art. 20(3) of the Constitution against the use of the

statement made by him on the ,-,round that by the active

deception of the police, he, was compelled to be a witness

against himself The appellant was not compelled to be a

witness against himself. He was free to talk or not to

talk. His conversation with S was voluntary. There was no

element of duress, coercion or. compulsion. His statements

were not extracted from him in an oppressive manner or by

force or against his wishes. The fact that the, tape

recording was done without his knowledge is not of itself an

objection to its admissibility in evidence.

Effect of Panchnama - Evidentiary value ( corroboration and contradiction under 157 evidence act)

Who are panchas ? where do they fit in ?

It is to be noted that the Panchas are to be two or more independent and respectable persons i.e. persons who are not of disrepute. If there is no eyewitnesses to an offence and the case is totally based on circumstantial evidence, then such a Panchanama is of immense value.

Bombay High Court

Vishnu Krishna Belurkar vs The State Of Maharashtra on 18 February, 1974

Equivalent citations: (1974) 76 BOMLR 627

The Panchnama is merely a record of what a panch sees, and the only use to which it can properly be put is that when the panch goes into the witness box and swears as to what he saw, the panchnama can be used as a contemporary record to refresh his memory. primary and essential Purpose of making such panchanamas is to make a record of things which occur in the presence of panchas and which are seen and heard by them and the purpose is never to convey or inform or impart knowledge to the police officer about the things that are seen or heard by them; the secondary purpose which is served by these panchanamas is that such record should serve as aid memoir to the panchas when they enter the witness-box in the Court at the time of the trial and depose about the things which they had seen and heard and such record having been made contemporaneously at about the time when the panchas had seen and heard the things also serve the purpose of corroborating their evidence given at the trial. Undoubtedly, such panchanamas cannot take the place of substantive evidence but they merely corroborate the substantive evidence if given by the panch from the witness box at the trial. In other words, the use of such contemporary record being in the nature of previous statement made by the panch for corroborating the evidence of the panch is perfectly valid under Section 157 of the Evidence Act.

What if police officer uses this interpretation to circumvent the bar of 162? Answer : court will not consider such statement as panch nama at all.

"It was, however, urged that a police officer can circumvent the bar of Section 162 by asking the witness, whom he has interrogated under Section 161 during the course of his investigation, to make a record of what he has seen or known about the offence in the form of a panchianama and such record would become admissible for purposes of corroboration under Section 157 of the Evidence Act. But if such a thing happens it would clearly be an abuse of power or colourable exercise of power possessed by the police to make panchanamas during the course of investigation and surely the Court will not regard the resultant document as being a panchanama in its true sense; it would be a question of fact which the Court will have to decide and if on the material on record it comes to the conclusion that the document styled as panchanama is the result of any fraud on the power possessed by the police it will not permit its use for purposes of corroboration under Section 157. "

But if a document styled as panchanama is in reality and in substance a mere record of the thing that occurs in the presence of the panchas and of what the panchas have seen and heard, the mere fact that such record has been scribed by the police officer or a police scribe will not convert the recitals thereof into any statements communicated to the police officer within the meaning of Section 162, Criminal Procedure Code. Similarly the further fact that such record is retained by the police officer with him till it is Produced at the trial also will not affect the position nor will the fact that the panchas- have subscribed or appended their signatures at the foot of the panchanamas make any difference.

(If however , panchanama incorporates a statement intended as a narration to a police officer during investigation then it would fall under 162 and will have to excluded . The mere fact that record has been scribed by a police officer or police scribe will not convert the statement communicated to police officers.)

Panchanamas in Criminal Trials:-

Spot Panchanama - This panchanama is generally drawn by Investigating officer (IO) when he visits the crime scene.

Seizure Panchanama - As the name suggests, this Panachnama is drawn when the IO seizes some articles from the accused person or from any other person at the crime scene and/or articles seized from the crime scene or from any other place. Guidance can be had by reading with Section 100 of Cr.PC.

Inquest Panchanama - The inquest Panchanama has to be done in accordance with Section 174 of the Cr.P.C.

Memorandum Panchanama / Recovery memo -. The statement made by the accused is recorded before the Pancha (Witness) while the accused is in police custody . Its made during recovery proceedings as envisaged by section 27 of Indian Evidence Act.

Arrest Panchanama - As the name suggests, this Panchanama is drawn when the suspected person/ accused is arrested by the police. Arrest and seizure panchnama may be made in an act of a single transaction by police . Such as a raid , they are not necessarily disjunct.

Supreme Court of India

Murli & Anr vs State Of Rajasthan on 18 August, 2009

The contents of the Panchanama are not the substantive evidence. The law is settled on that issue. What is substantive evidence is what has been stated by the Panchas or the concerned person in the witness box.

Tori Singh v. State of UP AIR 1962 SC 399

A rough sketch map prepared by SI on basis of statement of witness during course of an investigation and showing places where deceased was hit and places where witnesses was at the time of the incident was held to be inadmissible under 162 for it was nothing more than statement of SI what the eye witness told him and would be no more than statement to police.

What if police officer tries to circumvent the bar of 162 by addressing a letter to himself by the witness?

Supreme Court of India

Kali Ram vs State Of Himachal Pradesh on 24 September, 1973

Equivalent citations: 1973 AIR 2773, 1974 SCR (1) 722

The prohibition contained in the section relates to all statements made during the course of an investigation. Letter which was addressed by Sahi Ram to Station House Officer was in the nature of narration of what, according to Sahi Ram, he had been told by the accused. Such a letter, in our opinion, would constitute statement for the purpose of section 162 of the Code of Criminal Procedure. The prohibition relating to the use of a statement made to a police officer during the course of an investigation cannot be set at naught by the police officer not himself recording the statement of a person but having it in the form of a communication addressed by the person concerned to the police officer. If a statement made by a person to a police officer in the course of an investigation is inadmissible, except for the purposes mentioned in section 162, the same would be true of a letter containing narration of facts addressed by a person to a police officer during the course of an investigation. It is not permissible to circumvent the prohibition contained in section 162 by the investigating officer obtain a written statement of a person instead of the investigating officer himself recording that statement.

Proper procedure to be followed by police in respect of Pacha witness and TIP :-

Supreme Court of India

Santa Singh vs State Of Punjab on 2 February, 1956

if after arranging the parade the police leave the field, so to say, and allow the identification to be made under the exclusive direction and supervision of the panch witnesses, the statements of the identifying witnesses would be outside the purview of section 162.

WILL GESTURES BE INCLUDED IN 162 ?

Supreme Court of India

Ramkishan Mithanlal Sharma vs The State Of Bombay.[And Two ... on 22 October, 1954

identifying witnesses or the Panch witnesses who are procured by the police do so, the identifying witnesses are explained the purpose of holding these parades and are asked to identify the properties which are the subject-matter of the offence or the persons who are concerned in the offence. If this background is kept in view it is clear that the process of identification by the identifying witnesses involves the statement by the identifying witnesses that the particular properties identified were the subject-matter of the offence or the persons identified -were concerned in the offence. This statement may be express or implied. The identifier may point out by his finger or -touch the property or the person. identified, may either nod his head or give his assent in answer to a question addressed to him in that behalf or may make signs or gestures which are tantamount to saying that the particular property identified was the subject-matter of the offence or the person identified was concerned in the offence. All these statements express or implied including the signs and gestures would amount to a communication of the fact of identification by the identifier to another person. The distinction therefore which has been made by the Calcutta and the Allahabad High Courts between the mental act of identification and the communication thereof by the identifier to another person is quite logical and such communications are tantamount to statements made by the identifiers to a police officer in the course of investigation and come within the ban of section 162. The physical fact of identification has thus no separate existence apart from the statement involved in the very process of identification and in so far as a police officer seeks to prove the fact of such identification such evidence of his would attract the operation of section 162 and would be inadmissible in evidence, the only exception being the evidence sought to be given by the identifier him- self in regard to his mental act of identification which he would be entitled to give by way of corroboration of his identification of the accused at the trial. We therefore approve of the view taken by the Calcutta and Allahabad High Courts.

Jit Singh v. State of Punjab on 24 March, 1976

Notes of Site plan prepared by I.O in accordance to various situations pointed out to him by witnesses are statement recorded by polie officer in course of investigation and are hit by 162 .

But prosecution case cannot be rejected solely on the ground that made a site plan on statement of witnesses . (State of Rajasthan v. Bhawani )

Use of section 162 :

1- Maybe used by Defence for contradicting the prosecution

2- May be used by prosecution for contradicting prosecution witness with permission of the court , this might be desirable if prosecution witness is hostile .

3- Witness whose previous statement is so used may be re-examined by way of an explanation.

Does 162 Cr.PC affect 165 evidence act?

Supreme Court of India

Raghunandan vs State Of U.P on 10 January, 1974

"It is true that the ban, imposed by section 162 Criminal Procedure Code, against the use of a statement of a Witness recorded by the Police during investigation, appears sweeping and wide. But, at the same time, we and that the powers of the Court, under section 165 of the Evidence Act, to put any question to a witness, are also couched in very wide terms authorising the Judge "in order to discover or to obtain proper proof of relevant facts" to "ask any question he pleases, in any form, at any time, of any witness, or of the parties, about any fact relevant or irrelevant". The first proviso to section 165 Evidence Act, enacting that, despite the powers of the Court to put any question to a witness, the judgment must be based upon facts declared by the Act to be relevant, only serves to emphasize the width of the power of the Court to Question a witness. The second proviso is this section preserves the privileges of witnesses to refuse to answer certain questions and prohibits only questions which would be considered improper under section 148 and 149 of the Evidence Act. Statements of witnesses made to the police during the investigation do not fall under any prohibited category mentioned in Section 165 Evidence Act. If Section 162 Criminal Procedure Code was meant to be so wide in its sweep as the Trial Court thought it to be, it would make a further inroad upon the powers of the Judge to put Questions under Section 165 Evidence Act. If that was the correct position, atleast Section 162 Criminal Procedure Code would have said so explicitly. Section 165 of the Evidence Act was already there when section 162 Criminal Procedure Code was enacted. It is certainly quite arguable that Section 162 Criminal Procedure Code doer, amount to a prohibition against the use even by the Court of statements mentioned there. Nevertheless, the purpose of the prohibition of Section 162 Criminal Procedure Code being to prevent unfair use by the prosecution of statements made by witnesses to the Police during the course of investigation, while the proviso is intended for the benefit of the defence, it could also be urged that, in order to secure the ends of Justice, which all procedural law is meant to subserve, the prohibition, by taking into account its purpose and the mischief it was designed to prevent as well as its context, must be confined in its scope to the use by parties only to a proceeding of statements mentioned there.

We are inclined to accept the argument of the appellant that the language of Section 162 Criminal Procedure Code, though wide, is not explicit or specific enough to extend the prohibit on to the use of the wide and special powers of the Court to question a witness, expressly and explicitly given by Section 165 of the Indian Evidence Act in order to secure the ends of justice. We think that a narrow and restrictive construction put upon the prohibition in Sect on 162 Criminal Procedure Code, so as to confine the ambit of it to the use of statements by witnesses by parties only to a proceeding before the Court, would reconcile or harmonize the two provisions considered by us and also serve the ends of justice. Therefore, we hold that Section 162 Criminal Procedure Code does not impair the special powers of the Court under Section 165 Indian Evidence Act. "

162 can be used for purpose of contradicting a prosecution witness.

What are major material omission and scope of 162 ?

Supreme Court of India

Tahsildar Singh And Another vs The State Of Uttar Pradesh on 5 May, 1959

Equivalent citations: 1959 AIR 1012, 1959 SCR Supl. (2) 875

The said statement is no doubt instructive, but it cannot be pressed into service to interpret the provisions of s. 162 of the Code of Criminal Procedure. In America, there is no provision similar to s. 162 of the Code.

The two conflicting views may be briefly stated thus: (i) 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; and (ii) they must be in regard to important features of the incident which are expected to be included in the statement made before the police. The first proposition not only carries out the intention of the legislature but is also in accord with the plain meaning of the words used in the section. The second proposition not only stretches (1) A.I.R. 1932 Lah. 103. (2) A.I.R. 1938 Pat. 579. (3) A.I.R. 1936 M.P. 13. The meaning of the word " statement " to a breaking point, but also introduces an uncertain element, namely, ascertainment of what a particular witness would have stated in the circumstances of a particular case and what the police officer should have recorded. When the section says that the statement is to be used to contradict the subsequent version in the witness-box, the proposition brings in, by construction, what he would have stated to the police within the meaning of the word " statement ". Such a construction is not permissible.

From the foregoing discussion the following propositions emerge: course of investigation can be used only to contradict his statement in the witness-box and for no other purpose; (2) statements not reduced to writin(1) A. statement in writing made by a witness before a police officer in the g by the police officer cannot be used for contradiction; (3) though a particular statement is not expressly recorded, a statement that can be deemed to be part of that expressly recorded can be used for contradiction, not because it is an omission strictly so-called but because it is deemed to form part of the recorded statement; (4) such a fiction is permissible by construction only in the following three cases:

(i) when a recital is necessarily implied from the recital or recitals found in the statement ; illustration: in the recorded statement before the police the witness states that he saw A stabbing B at a particular point of time, but in the witness-box he says that he saw A and C stabbing B at the same point of time; in the statement before the police the word " only " can be implied, i.e., the witness saw A only stabbing B; (ii) a negative aspect of a positive recital in a statement; illustration: in the recorded statement before the police the witness says that a dark man stabbed B, but in the witness-box he says that a fair man stabbed B; the earlier statement must be deemed to contain the recital not only that the culprit was a dark complexioned man but also that be was not of fair complexion; and (iii) when the statement before the police and that before the Court cannot stand together; illustration: the witness says in the recorded statement before the police that A after stabbing B ran away by a northern lane, but in the Court he says that immediatly after stabbing he ran away towards the southern lane; as he could not have run away immediately after the stabbing, i.e., at the same point of time, towards the northern lane as well as towards the southern lane, if one statement is true, the other must necessarily be false. The aforesaid examples are not intended to be exhaustive but only illustrative. The same instance may fall under one or more heads. It is for the trial Judge to decide in each case' after comparing the part or parts of the statement recorded by the police with that made in the witness-box, to give a ruling, having regard to the aforesaid principles, whether the recital intended to be used for contradiction satisfies the requirements of law.

(illustration as to how cross examination will affect 162 )

Q. I put it to you that when you arrived on the scene X was already running away and you did not actually see him stab D as you have deposed to-day ?

A. No. I saw both the events.

Q. If that is so, why is your statement to the police silent as to stabbing ?

A. I stated both the facts to the police.

The witness can then be contradicted with his previous statement. We need hardly point out that in the illustration given by us, the evidence of the witness in Court is direct evidence as opposed to testimony to a fact suggesting guilt. The statement before the police only be called circumstantial evidence of, complicity and not direct evidence in the strict sense.

Of course, if the questions framed were:

Q. What did you state to the police ? or Q. Did you state -to the police that D stabbed X ? They may be ruled out as infringing s. 162 of the Code of Criminal Procedure, because they do not set tip a contradiction but attempt to get a fresh version from the witnesses with a view to contradicting him. How the cross- examination can be made must obviously vary from case to case, counsel to counsel and statement to statement. No single rule can be laid down and the propriety of the question in the light of the two sections can be found only when the facts and questions are before the Court. But Supreme Court is of opinion that relevant and material omissions amount to vital contradictions, which can be established by cross- examination and confronting the witness with his previous statement.)

Contradiction as opposed to caviling :

Appabhai .Vs. State of Gujrat AIR 1988 S.C. 694 [1988 Cri.L.J. 848], The Hon’ble Apex Court has observed as under: “The Court while appreciating the evidence must not attach undue importance to minor discrepancies. The discrepancies which do not shake the basic version of the prosecution case may be discarded.

In Arjun and others ..Vs.. State of Rajsthan, AIR 1994 SC 2507, The Hon’ble Court has held that – A little bit of discrepancies or improvement do not necessarily demolish the testimony. Trivial discrepancy, as is well known, should be ignored. Under circumstantial variety the usual character of human testimony is substantially true. Similarly, innocuous omission is inconsequential.

Supreme Court of India

Baladin And Ors. vs State Of Uttar Pradesh on 18 October, 1955

Equivalent citations: AIR 1956 SC 181, 1956 CriLJ 345

"If the police record becomes suspect or unreliable, as in the present case, on the ground that it was deliberately perfunctory or dishonest, it loses much of its value and the court in judging the case of a particular accused has to weigh the evidence given against him in court keeping in view the fact that the earlier statements of witnesses as recorded by the police is tainted record and has not as real value as it otherwise would have in weighing all the material on the record as against each individual accused."

(Remember a statement which has not been reduced into writing by a police officer cannot be used for contradiction.)

(statement under 161 cannot be used for corroboration , they cannot be used for contradicting the defence witness or a court witness , it can only be used for contradicting prosecution witness and impeaching his credit)

State of U.P. Vs. M.K. Anthony AIR 1985 SC 48, the Hon’ble Apex Court laid down certain guidelines in this regard, which require to be followed by the courts in such cases. The Court observed as under :- technical approach by taking sentences torn out of context here or there from the evidence, attaching importance to some technical error committed by the investigating officer not going to the root of the matter would not ordinarily permit rejection of the evidence as a whole. If the court before whom the witness gives evidence had the opportunity to form the opinion about the general tenor of evidence given by the witness, the appellate court which had not this benefit will have to attach due weight to the appreciation of evidence by the trial court and unless there are reasons weighty and formidable it would not be proper to reject the evidence on the ground of minor variations or infirmities in the matter of trivial details. Even honest and truthful witnesses may differ in some details unrelated to the main incident because power of observation, retention and reproduction differ with individuals. Cross examination is an unequal duel between a rustic and refined lawyer.”

In Rajendra singh vs. State of U.P – (2007) 7 SCC 378, “a statement under Section 161 Cr. P. C is not a substantive piece of evidence. In view of the provision to Section 162 (1) CrPC, the said statement can be used only for the limited purpose of contradicting the maker thereof in the manner laid down in the said proviso.

Principles when omission amounts to contradiction :-

1- When recital is necessarily implied from the recital found in the statement.

2- A negative aspect in positive recital in a statement

3- When statement before police and that before court cannot stand together . ( based on tehsildar singh case )