An Exposition of Section 162 of the Code of Criminal Procedure, 1973

An Exposition of Section 162 of the Code of Criminal Procedure, 1973: Scope, Application, and Judicial Interpretation in India

Introduction

Section 162 of the Code of Criminal Procedure, 1973 (Cr.P.C.) is a pivotal provision governing the use of statements made by any person to a police officer during the course of an investigation. It embodies crucial safeguards for the accused and plays a significant role in ensuring the fairness of criminal trials in India. The section primarily prohibits the signing of such statements if reduced to writing and severely restricts their use as evidence, with a carefully circumscribed exception for contradicting a witness. This article aims to provide a comprehensive analysis of Section 162 Cr.P.C., delving into its statutory framework, legislative intent, key judicial interpretations, and its interplay with other provisions of Indian evidence and procedural law. The analysis will draw heavily upon landmark judgments and relevant legal principles to elucidate the scope and application of this provision.

The Statutory Provision: Section 162 Cr.P.C.

Section 162 of the Code of Criminal Procedure, 1973, as articulated in various judicial documents (e.g., New India Assurance Co. Ltd. v. M.S. Venkatesh Babu, NCDRC, 2011; Rabari Khima Ganda v. State, Gujarat High Court, 1978), reads as follows:

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.

The core components of this section are:

  • A prohibition against the signing of any statement made to a police officer during investigation, if it is reduced to writing.
  • A general bar on the use of such a statement or its record (whether in a police diary or otherwise) for any purpose at any inquiry or trial concerning the offence under investigation at the time the statement was made.
  • A proviso carving out an exception: such statements can be used to contradict a prosecution witness (by the accused, and with the court's permission, by the prosecution) in accordance with Section 145 of the Indian Evidence Act, 1872. It also allows for its use in re-examination to explain matters arising from such contradiction.
  • Sub-section (2) explicitly saves statements falling under Section 32(1) of the Indian Evidence Act (e.g., dying declarations) and the provisions of Section 27 of the Indian Evidence Act (related to discovery of facts).

Legislative Intent and Object

The Supreme Court in Tahsildar Singh & Another. v. State Of U.P. (1959 AIR SC 1012) extensively discussed the object of Section 162 Cr.P.C. The primary legislative intent is to protect the accused from the potential misuse of statements recorded by police officers, who might be overzealous in their investigation or susceptible to influences. The Court noted that the provision aims to prevent the undue influence of police statements on the accused's right to a fair trial and to shield the accused from potentially unreliable or coerced statements made during investigation. The Calcutta High Court in Bhagirathi Chowdhury And Ors. v. The King-Emperor . (1925 SCC ONLINE CAL 91) also emphasized the exclusionary nature of the section, stating it "is clear enough to exclude any statement made by any person and directs that such statement shall not be used for any purpose," subject to the proviso.

Key Aspects and Judicial Interpretations

"Statement Made to a Police Officer"

The term "statement" encompasses any oral narration made to a police officer during investigation, which is subsequently reduced to writing (Tahsildar Singh & Another. v. State Of U.P., 1959). The expression "any person" in Section 161 Cr.P.C. (and consequently affecting Section 162) includes an accused person as well (Mottammal Shaji @ Kakka Shaji v. State Of Kerala, Kerala High Court, 2017). The Gujarat High Court in Rabari Khima Ganda v. State (1978) considered whether a counter-complaint would be covered by Section 162, indicating that such a statement, if made during investigation, would fall under its purview.

Prohibition Against Signing Statements

Section 162(1) unequivocally mandates that statements recorded by the police, if reduced to writing, shall not be signed by the maker. This is to ensure that the statement remains an unauthenticated record by the police, preventing it from acquiring the character of a formal, binding deposition (State Of Gujarat v. Swami Amar Jyoti Shyam Opponent., Gujarat High Court, 1988). In State Of U.P v. M.K Anthony . (1985 SCC 1 505), the Supreme Court observed that procedural anomalies like improper acquisition of signatures under Section 162 Cr.P.C. do not inherently invalidate the testimonies if evaluated in the broader context, though the act of obtaining the signature itself remains contrary to the statute.

The General Bar: "Used for any purpose"

The general prohibition on the use of such statements "for any purpose" is extensive. This means they cannot be used as substantive evidence of the facts stated therein (Tahsildar Singh & Another. v. State Of U.P., 1959). The statement recorded under Section 161 Cr.P.C. is not considered evidence and cannot be used to corroborate or contradict any witness other than the one who made it (State Of Rajasthan v. Teja Ram And Others, 1999 SCC 3 507, citing Tahsildar Singh). The Madras High Court in P. Sirajuddin v. Government Of Madras (1966) noted the increased importance of these statements after the 1955 Cr.P.C. amendment, particularly in warrant cases and committal proceedings, as they form part of the documents supplied to the accused under Section 173(5) Cr.P.C. (Akbaruddin Owaisi v. The Government Of Andhra Pradesh And Ors., Andhra Pradesh High Court, 2013).

However, the Supreme Court in Ashok Tshering Bhutia v. State Of Sikkim (2011 SCC 4 402) observed that "any information or statement made before the investigating officer under Section 161 Cr.P.C requires corroboration by sufficient evidence. In the absence of any corroboration thereof, it would merely be a case where some witnesses had stated a particular fact before the investigating officer and the same remained inadmissible in law, in view of the provisions of Section 162 Cr.P.C." This observation needs to be understood in the context that Section 162 itself renders the statement inadmissible as substantive evidence, irrespective of corroboration, its only permitted use being for contradiction.

The Proviso: Use for Contradiction

The proviso to Section 162(1) is the sole gateway for using these statements in court during inquiry or trial.

  • Mechanism: Contradiction must be done in the manner provided by Section 145 of the Indian Evidence Act, 1872. This requires drawing the witness's attention to those parts of the written statement by which it is intended to contradict them, before the writing can be proved (SIYARAM SIRDAR v. STATE OF CHHATTISGARH, Chhattisgarh High Court, 2024; Puthenthara Mohanan And Others v. State Of Kerala ., Kerala High Court, 1989).
  • Meaning of "Contradiction": The Supreme Court in Tahsildar Singh (1959) clarified that "contradict" means to bring out an inconsistency between the witness's testimony in court and their previous statement to the police. This includes not only direct contradictions but also material omissions that amount to contradictions. An omission is a contradiction if it is of such significance that the witness would have been expected to mention it, and its absence in the police statement implies it did not happen or was not perceived by the witness at that time. The Karnataka High Court in Muninajappa And Others, Accused- v. State Of Mysore (1958) also dealt with omissions as contradictions.
  • Limitations: Only specific parts of the statement used for contradiction can be proved. Wholesale marking of the entire statement is improper (Muninajappa And Others, Accused- v. State Of Mysore, 1958; Puthenthara Mohanan And Others v. State Of Kerala ., 1989). The statement cannot be used for corroboration of a prosecution witness or to impeach the credit of a defence witness.
  • Use by Accused and Prosecution: The accused has an unfettered right to use the statement for contradiction. The prosecution can do so only with the permission of the Court.
  • Re-examination: If a part of the statement is used for contradiction, any other part of it may be used in re-examination, but only to explain any matter referred to in the cross-examination.
  • Supply of Copies: The accused has a right to be furnished with copies of statements recorded under Section 161 Cr.P.C. to enable them to exercise their right of contradiction (Pulukuri Kottaya And Others v. Emperor, 1947 AIR PC 67; P. Sirajuddin v. Government Of Madras, 1966).

Sub-section (2): Exceptions

Section 162(2) carves out two important exceptions to the general bar:

  • Section 32(1) of the Indian Evidence Act: Statements relating to the cause of death (dying declarations) made to a police officer are admissible if they fall under Section 32(1).
  • Section 27 of the Indian Evidence Act: So much of information received from an accused in police custody as distinctly relates to a fact thereby discovered is admissible. The Supreme Court in Pulukuri Kottaya (1947) clarified the extent of the statement admissible under Section 27. Further, State Of Rajasthan v. Teja Ram And Others (1999) affirmed that the prohibition against signing statements under Section 162(1) does not apply to disclosure statements recorded under Section 27 of the Evidence Act. The constitutional validity of Section 27, which operates as an exception, was upheld in State Of Uttar Pradesh v. Deoman Upadhyaya . (1960 AIR SC 1125).

Distinction from FIR (Section 154 Cr.P.C.)

An FIR lodged under Section 154 Cr.P.C. is distinct from a statement recorded under Section 161 Cr.P.C. An FIR is required to be signed by the informant, whereas a statement under Section 161, if reduced to writing, must not be signed by the maker as per Section 162 (Akbaruddin Owaisi v. The Government Of Andhra Pradesh And Ors., 2013). An FIR can be used for corroboration or contradiction of the informant, unlike a Section 162 statement which can only be used for contradiction.

Statements in Case Diaries (Section 172 Cr.P.C.)

Section 172 Cr.P.C. deals with the police officer's diary of proceedings in investigation. The Supreme Court in Mohammed Ankoos And Others v. Public Prosecutor, High Court Of Andhra Pradesh, Hyderabad . (2009) noted that while the accused is not entitled to call for such diaries as a matter of right, the court may use them to aid its inquiry or trial, or they may be used by the police officer to refresh memory, or by the court to contradict such police officer. In such latter scenarios, the provisions of Section 161 Cr.P.C. or Section 145 of the Evidence Act, as applicable, would come into play, thereby linking the use of case diary entries (which may contain witness statements) to the rules governing Section 162 statements.

Inadmissibility v. Conduct (Section 8 Evidence Act)

The bar under Section 162 Cr.P.C. applies to "statements." It does not exclude evidence of conduct of an accused, even if it occurs during investigation. The Madras High Court in Muthu v. State (2000) clarified that evidence of the circumstance that an accused led a police officer and pointed out a place (conduct) would be admissible under Section 8 of the Evidence Act, irrespective of whether any contemporaneous statement is hit by Section 162 or does not fall under Section 27 of the Evidence Act.

Use in Proceedings Other Than Inquiry or Trial for the Offence

A significant interpretation regarding the scope of the bar "at any inquiry or trial in respect of any offence under investigation at the time when such statement was made" comes from its application in other proceedings. The Madras High Court in Suman And Etc.… v. State Of Tamil Nadu And Another Etc.… (1986), relying on the Supreme Court's observations in Khatri And Others (Ii) v. State Of Bihar And Others (1981 SCC 1 627), held that statements recorded under Section 162 Cr.P.C. could constitute material for the subjective satisfaction of a detaining authority in preventive detention cases. The reasoning is that the protection under Section 162 Cr.P.C. is unnecessary in any proceeding other than an inquiry or trial in respect of the specific offence under investigation, making the bar a limited one. This was also affirmed by the Kerala High Court in DR. RAZEENA ALI, v. JUBEESH (2021) citing V.K. Mishra & Ors. v. State of Uttarakhand & Ors. (AIR 2015 SC 3043) that the bar is for the limited purpose of contradiction of such witness *as indicated in Section 162 Cr.P.C.*, implying its primary application to the criminal trial context.

Analysis of Landmark Judgments

Tahsildar Singh & Another. v. State Of U.P. (1959 AIR SC 1012)

This seminal judgment meticulously dissected Section 162 Cr.P.C. The Supreme Court laid down authoritative principles regarding:

  • The meaning of "statement" and "contradict."
  • The conditions under which an omission in a police statement can be treated as a contradiction (i.e., when it is material and significant).
  • The strict adherence to Section 145 of the Evidence Act for proving contradictions.
  • The protective legislative intent behind the section, emphasizing fair trial rights.
  • The limited scope of re-examination based on such statements.
The Court emphasized that the purpose of the proviso is to give the accused a tool to impeach the credibility of prosecution witnesses, not to allow the statement to be used as substantive evidence.

Pulukuri Kottaya And Others v. Emperor (1947 AIR PC 67)

The Privy Council in this case dealt with the interplay between Section 162 Cr.P.C. and Section 27 of the Evidence Act. It clarified that:

  • The accused must be supplied with copies of statements made by prosecution witnesses to the police.
  • Non-compliance with Section 162 could lead to prejudice, but the effect of such breach would depend on the facts of each case.
  • Under Section 27 of the Evidence Act, only that portion of the information given by the accused which distinctly relates to the fact thereby discovered is admissible, and not the entire confessional statement.
This case underscored the importance of procedural fairness and the precise application of the exception under Section 27 of the Evidence Act.

Khatri And Others (II) v. State Of Bihar And Others (1981 SCC 1 627) (as applied in other contexts)

While primarily a case on Article 21 and legal aid, the Supreme Court's observations in Khatri, as interpreted by High Courts (e.g., Suman And Etc.… v. State Of Tamil Nadu And Another Etc.…, Madras High Court, 1986), have been crucial in defining the limits of the prohibition in Section 162 Cr.P.C. The interpretation that the bar under Section 162 is confined to the inquiry or trial for the specific offence under investigation has allowed the use of such statements for collateral purposes, such as forming the basis for subjective satisfaction in preventive detention matters. This demonstrates a judicial balancing of the protective scope of Section 162 with the exigencies of other legal proceedings.

Procedural Aspects and Practical Implications

The application of Section 162 Cr.P.C. has several procedural mandates. The defence must be vigilant in obtaining copies of all relevant statements. When seeking to contradict a witness, counsel must specifically draw the witness's attention to the relevant part of the prior statement. The trial court must ensure that the prosecution, if permitted to use a statement for contradiction, does so strictly within the confines of the law. Failure to properly prove a contradiction can render the attempt futile (Puthenthara Mohanan And Others v. State Of Kerala ., 1989). The integrity of the investigation process is also implicitly emphasized, as improperly recorded or manipulated statements can undermine the entire trial process.

The statement recorded by the police under Section 161 Cr.P.C. becomes a vital document, especially as it forms part of the report forwarded by the police under Section 173 Cr.P.C. (P. Sirajuddin v. Government Of Madras, 1966; Akbaruddin Owaisi v. The Government Of Andhra Pradesh And Ors., 2013), enabling the accused to prepare their defence effectively.

Conclusion

Section 162 of the Code of Criminal Procedure, 1973, stands as a bulwark against potential police excesses and aims to ensure that a trial is conducted based on evidence tested in court, rather than on unverified statements recorded during investigation. Its prohibition on signing statements and the general bar on their use, coupled with the specific and limited exception for contradiction, reflects a carefully calibrated legislative scheme. Judicial interpretations, particularly by the Supreme Court in cases like Tahsildar Singh and Pulukuri Kottaya, have clarified its contours, emphasizing its protective shield for the accused while allowing for its legitimate use in impeaching witness credibility. The exceptions carved out for dying declarations, discoveries under Section 27 of the Evidence Act, and its limited applicability outside the specific criminal inquiry or trial, demonstrate the provision's nuanced role within the Indian criminal justice system. Adherence to the letter and spirit of Section 162 Cr.P.C. is paramount for upholding the principles of a fair trial and ensuring the integrity of the adjudicatory process.