Statements to Police under Section 161 CrPC: Evidentiary Value, Procedural Safeguards, and Judicial Scrutiny in Indian Criminal Law

Statements to Police under Section 161 CrPC: Evidentiary Value, Procedural Safeguards, and Judicial Scrutiny in Indian Criminal Law

Introduction

Section 161 of the Code of Criminal Procedure, 1973 (CrPC) empowers a police officer making an investigation to examine orally any person supposed to be acquainted with the facts and circumstances of the case. The statements recorded thereunder, commonly referred to as "161 statements," form a crucial part of the police investigation, aiding in the discovery of truth and the collection of evidence. However, their utility and admissibility during an inquiry or trial are strictly circumscribed by law, primarily by Section 162 CrPC. This article undertakes a comprehensive analysis of statements recorded under Section 161 CrPC, delving into their nature, the procedure for recording them, their evidentiary status, the permissible uses in court, the rights of the accused concerning these statements, and the consistent stance of the Indian judiciary in interpreting these provisions. The objective is to elucidate the delicate balance the law seeks to maintain between facilitating effective investigation and safeguarding the accused against potential misuse of such statements.

The Nature and Scope of Section 161 CrPC Statements

Statutory Provision: Section 161 CrPC

Section 161 CrPC is structured into three sub-sections, outlining the process and obligations related to the examination of witnesses by the police:

  • Sub-section (1) empowers any police officer making an investigation, or any police officer not below a specified rank acting on requisition, to examine orally any person supposed to be acquainted with the facts and circumstances of the case.[17], [15] This power is a cornerstone of the investigative process.
  • Sub-section (2) mandates that such a person shall be bound to answer truly all questions relating to the 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.[17], [19] This provides a safeguard against self-incrimination, aligning with constitutional principles.
  • Sub-section (3) stipulates that the police officer may reduce into writing any statement made to him in the course of an examination under this section. If the officer does so, a separate and true record of the statement of each such person whose statement is recorded must be made.[15], [17], [18] This sub-section includes important provisos, added by amendments, allowing for the recording of statements by audio-video electronic means.[17] A further proviso mandates that the statement of a woman against whom certain offences (e.g., under Sections 354, 354A, 354B IPC etc.) are alleged to have been committed or attempted shall be recorded by a woman police officer or any woman officer.[17]

Recording of Statements: Practices and Judicial Observations

The judiciary has made several pertinent observations regarding the recording of Section 161 statements:

  • Non-Obligatory Nature of Writing: It is not obligatory for a police officer to reduce every oral statement to writing.[18] The officer may do so if deemed necessary. Failure to record a statement in writing does not, by itself, render the testimony of such a witness inadmissible in court, though it might affect the probative value of their evidence.[18]
  • No Signature of the Maker: Section 162(1) CrPC explicitly prohibits the signing of any statement made to a police officer if it is reduced to writing.[15], [7], [9] This is to prevent any form of coercion or misrepresentation and to ensure the voluntariness of the statement as recorded.
  • Promptness and Accuracy: While Section 161(3) requires a "true record," delays in recording statements have been viewed with suspicion by courts, as they can provide an opportunity for deliberation and embellishment.[2], [27] The Supreme Court in Ganesh Bhavan Patel v. State of Maharashtra noted that significant delays in recording witness statements can raise suspicions.[2] Similarly, in Chunni S/O Balli Dhanuk v. The State, delay in recording a Section 161 statement was a factor in discrediting testimony.[27]
  • Concerns about Fabrication: There have been instances where the integrity of Section 161 statements has been questioned due to allegations of fabrication or dishonest investigation. In Daljit Singh v. State Of Haryana, the non-recording, and alleged fabrication, of a Section 161 statement of an important witness (a Naib Tehsildar present during recovery) was deemed to cast doubt on the prosecution story.[30] The Himachal Pradesh High Court in Prem Chand Jain v. State Of H.P. acknowledged that an accused person, upon learning of an allegedly false or fabricated Section 161 statement, can bring it to the notice of a superior police officer for appropriate action, including further investigation under Section 173(8) CrPC.[16]

Evidentiary Status and Use of Section 161 Statements: The Bar under Section 162 CrPC

General Prohibition under Section 162 CrPC

Section 162 CrPC imposes a general and stringent bar on the use of statements made to a police officer during investigation. It states that no statement made by any person to a police officer in the course of an investigation, if reduced into writing, nor any record thereof (whether in a police diary or otherwise), nor any part of such statement or record, shall be used for any purpose (save as provided in the section) at any inquiry or trial in respect of any offence under investigation at the time when such statement was made.[1], [15], [19]

The Supreme Court in Tahsildar Singh & Another. v. State Of U.P extensively analyzed the legislative intent behind Section 162 CrPC, emphasizing its objective to protect the accused from potentially unreliable or coerced statements made to police officers and to prevent the undue influence of such statements on the trial.[1] The Court has repeatedly held that statements recorded under Section 161 CrPC are "wholly inadmissible in evidence" for substantive purposes.[12], [24], [28] Their use is strictly limited to the exceptions carved out in Section 162 itself.

Permissible Uses: Contradiction and Corroboration

The primary exception to the general bar under Section 162(1) CrPC is provided in its proviso. This allows:

  • Contradiction of Prosecution Witnesses: When a witness is called for the prosecution in such inquiry or trial, any part of their 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], [15], [5], [13], [10], [17]
  • Meaning of "Contradiction": The term "contradict" has been interpreted broadly. In Tahsildar Singh, the Supreme Court clarified that a contradiction is an inconsistency between the witness's current testimony and their previous statement.[1] This can include omissions if they are significant and relevant, amounting to a contradiction of what was stated in court.[1] For instance, if a witness in court deposes to a fact which they omitted to state to the police, and that omission is significant enough to be considered inconsistent with their present testimony, it can be used for contradiction.[21], [23]
  • Procedure under Section 145, Evidence Act: To contradict a witness with their previous written statement (including a Section 161 statement), their attention must be drawn to those parts of the writing which are to be used for the purpose of contradicting them, before the writing can be proved.[17], [10]
  • Use in Re-examination: When any part of such statement is so used for contradiction, 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 their cross-examination.[19]
  • Corroboration (Limited Scope): While Section 162 CrPC primarily deals with contradiction, some judicial pronouncements, such as in NARESH ANEJA @ NARESH KUMAR ANEJA v. THE STATE OF UTTAR PRADESH, mention that Section 161 statements can be used for purposes under Sections 145 and 157 of the Evidence Act.[12] Section 157 of the Evidence Act allows for the corroboration of a witness's testimony by their former statement made at or about the time when the fact took place, or before any authority legally competent to investigate the fact. However, the overriding embargo of Section 162 CrPC generally restricts the use of police statements primarily to contradiction. The dominant view remains that Section 161 statements cannot be used as substantive evidence.[13], [28]

Distinction: Use in Criminal Trials v. Other Proceedings

It is crucial to note that the strict rules of evidence, including the bar under Section 162 CrPC, are primarily applicable to criminal trials. In State Bank Of Bikaner & Jaipur v. Srinath Gupta And Another, the Supreme Court held that statements recorded under Section 161 CrPC, though not admissible in a criminal trial, can be produced and relied upon in a domestic/disciplinary inquiry, where strict rules of evidence do not apply, provided principles of natural justice are complied with.[22]

Rights of the Accused and Procedural Safeguards

Right to Copies of Statements

The CrPC provides significant safeguards to the accused regarding Section 161 statements to ensure a fair trial:

  • Section 173(5)(a) CrPC mandates that the police officer shall forward to the Magistrate, along with the police report, all documents or relevant extracts thereof on which the prosecution proposes to rely, including the statements recorded under Section 161 of all the persons whom the prosecution proposes to examine as its witnesses.[14]
  • Section 207 CrPC obligates the Magistrate to furnish to the accused, free of cost, copies of the police report, FIR, statements recorded under Section 161(3) CrPC, confessions and statements recorded under Section 164 CrPC, and any other document or relevant extract thereof forwarded to the Magistrate with the police report.[13], [26]
  • The Supreme Court in V.K. Sasikala v. State emphasized that the right of the accused to receive these documents/statements is absolute and must be adhered to by the prosecution, and the court must ensure their supply in accordance with the law.[13] This right is intrinsically linked to the accused's statutory right under the proviso to Section 162(1) CrPC to confront witnesses with their prior statements.[13]

Withholding of Statements by Prosecution

While the right to copies is substantial, Section 173(6) CrPC allows a police officer to append a note requesting the Magistrate to exclude a part of any such statement from the copies to be granted to the accused if the officer is of the opinion that such part is not relevant to the subject-matter of the proceedings or that its disclosure to the accused is not essential in the interests of justice and is inexpedient in the public interest.[14] However, as observed in Neelesh Jain v. State Of Rajasthan, this power is not unbridled and can only be used in the enumerated circumstances with stated reasons, ensuring the State's action remains just, fair, and reasonable.[14]

Consequences of Non-Compliance or Improper Practices

Failures in adhering to procedural requirements or improper practices concerning Section 161 statements can have significant consequences:

  • Prejudice to the Accused: Non-supply of statements or improper recording can prejudice the accused's defence, particularly their right to effective cross-examination.[18], [30]
  • Adverse Inferences: Unexplained delays in recording statements or failure to record the statement of a crucial witness may, in certain circumstances, lead to adverse inferences or cast doubt on the prosecution's case.[27], [30]
  • Remedies for False Statements: As noted in Prem Chand Jain, if an accused believes a Section 161 statement is false or fabricated, avenues exist to seek redressal, such as approaching superior police officers or seeking further investigation.[16]

Judicial Scrutiny of Section 161 Statements

In Quashing Petitions (Section 482 CrPC)

The Supreme Court has unequivocally held that High Courts, while exercising power under Section 482 CrPC to quash criminal proceedings, cannot delve into the merits of Section 161 statements as they are wholly inadmissible in evidence. In Rajeev Kourav v. Baisahab And Others, the Court set aside a High Court order that had quashed proceedings based on an assessment of Section 161 statements, reiterating that such statements cannot be taken into consideration by the Court at that stage.[24] This was reaffirmed in NARESH ANEJA, where it was held that the High Court erred in quashing proceedings by assessing statements recorded under Section 161 CrPC.[12]

Appreciation by Trial and Appellate Courts

Trial and appellate courts must exercise caution and adhere strictly to the limited permissible uses of Section 161 statements:

  • They cannot be treated as substantive evidence of the facts stated therein.[13], [28]
  • They cannot be used by a court to justify its reasons while recording findings in a criminal trial or to convict an accused.[28]
  • Their primary utility lies in contradicting a witness under Section 145 of the Evidence Act by pointing out material omissions or inconsistencies between the court testimony and the prior police statement.[1], [23], [25] Such contradictions, if significant, can impeach the credibility of the witness.

For example, in State Of U.P v. Ashok Dixit And Another, material omissions in a witness's Section 161 statement regarding the presence and actions of an accused were considered fatal for the prosecution's identification of that accused.[23]

Distinguishing Section 161 CrPC from Other Statutory Provisions

It is important to distinguish Section 161 of the CrPC from other statutory provisions that might bear the same section number but pertain to entirely different subject matters. For instance, the reference material concerning State Of Maharashtra v. Narhar Rao[11] quotes a Section 161(1) which deals with the limitation period (six months) for instituting prosecutions or suits against certain public servants for acts done under colour or in excess of duty, under a specific (likely state-level) Act. This Section 161 is distinct from Section 161 of the CrPC, which governs the examination of witnesses by police during investigation. Such homonymous sections across different statutes require careful contextual understanding to avoid misapplication.

Furthermore, statements under Section 161 CrPC are distinct from:

  • First Information Report (FIR) under Section 154 CrPC: An FIR is the information given to the police about the commission of a cognizable offence that sets the investigative machinery in motion. While a statement recorded as an FIR can be used for corroboration or contradiction, its nature and initial purpose differ from Section 161 statements, which are recorded during the course of investigation.[29]
  • Statements Recorded under Section 164 CrPC: These are statements (including confessions) recorded by a Metropolitan or Judicial Magistrate during an investigation. They carry greater evidentiary weight than Section 161 statements due to the judicial oversight in their recording, though even S.164 statements (other than confessions) are primarily used for corroboration or contradiction.[12], [20]

Conclusion

Statements recorded by the police under Section 161 CrPC are indispensable to the criminal investigation process in India. They provide a foundational basis for the police to understand the case, identify suspects, and gather leads. However, the Indian legal system, through Section 162 CrPC and robust judicial interpretation, has erected strong safeguards against their misuse as substantive evidence in court. The law strictly confines their utility primarily to the contradiction of prosecution witnesses by the accused, thereby ensuring that the trial proceeds on the basis of evidence tested through cross-examination in court, rather than on unverified statements made to the police.

The rights of the accused to obtain copies of these statements and the limitations on the prosecution's ability to withhold them further fortify the principles of a fair trial. The judiciary has consistently played a critical role in upholding these safeguards, ensuring that Section 161 statements are not improperly used to the detriment of the accused, particularly at premature stages like quashing petitions. This intricate legal framework reflects a considered balance between empowering law enforcement agencies to conduct effective investigations and protecting the fundamental rights of individuals facing criminal charges.

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