This article was written by Anjali Sinha and updated by Kaustubh Phalke. The article explores the essentials of Section 162 CrPC and how the statements recorded under it can be used for what purposes in detail. As we dive into the article, we go through a brief introduction of the provision and then the meaning of this provision that makes the article more comprehensive and easy for the readers, followed by its essential, objective, importance, and the admissibility of the statements as evidence in an inquiry or trial given to the police officer during the course of the investigation. Further, after discussing all the important points of this provision, the article concludes with judicial precedents.

Introduction

Section 162 of the Criminal Procedure Code,1973 (CrPC) falls under Chapter XII CrPC, 1973, which ranges from Section 154 to 176. It deals with the powers of police officers to investigate and provide information to the police. 

Section 162 of the CrPC deals with the statements given by the accused to the police not to be signed and the use of these statements further during the trial. As per the provision, the statements made in front of the police are not admissible as evidence except for the purpose of contradiction.

Statements given by the accused to the police are recorded under Section 161 of the CrPC and cannot be used as substantial evidence either in favour of the accused or against him or her as per Section 162 of the CrPC. Such claims are solely valid for evaluating the credibility of the prosecution witnesses. A statement made during a police investigation cannot be the subject of cross-examination unless the person has already testified for the prosecution in court and his statement is introduced as evidence to refute that witness or to highlight an error in his earlier statement. 

In the recent case of Munna Pandey v. the State of Bihar (2023), the Apex Court stated that Section 162 of the CrPC does not put a bar on the court from looking into the documents or put questions suo moto to contradict them. The Supreme Court stated that “there is, in our opinion, nothing in Section 162 of the CrPC that prevents a trial judge from looking into the papers of the chargesheet suo motu and himself using the statement of a person examined by the police recorded therein.”

The provision was introduced with the objective of maintaining transparency and preventing any coercion of the accused during the police investigation.

Section 162 CrPC

The provision talks about the statements made to the police not to be signed by the maker and the use of these statements as evidence.

Subsection (1) of the provision prohibits the investigating officer from taking the signatures of the witnesses and accused on the statement, which is reduced to writing and given in front of the police. These statements are recorded under Section 161, which states the examination of witnesses by the police, mentioned under Section 160, which states the police officer’s power to require the attendance of witnesses. Such statements are not used for any purpose during the investigation or trial.

As per the provision, the following records are considered inadmissible in the courts:

• Any statement or record that constitutes a part of a police diary.
• Any part of such a statement of record.

The proviso to subsection (1) states that such statements made by the witness can be used for the following purposes:

• By the accused for contradicting the prosecution witness.
• By the prosecution for the purpose of contradicting the prosecution witness. This can be done with the prior permission of the court. This is done in the manner provided by Section 145 of the Indian Evidence Act of 1872 (hereinafter referred to as the IEA).
• Re-examination of the witness whose previous statement is used.

Subsection (2) of the provision states that, as per Section 27 of the IEA, any information given by a person in police custody that reveals some material fact is admissible in court.

The statement can be used if it is a dying declaration. Section 32 of the IEA deals with the Dying Declaration. A dying declaration is a statement made by the victim explaining the cause of death or any other material information. 

The explanation of this provision states that any omission to state any material fact or circumstance that is relevant and significant in front of the police on being tested by the court if it is found to be a material omission, then it will be considered a contradiction.

Essentials of Section 162 CrPC

As per the author’s own analysis pertaining to the current provision, the essentials of this provision are as follows:

Subsection (1) of Section 162 CrPC

As per Subsection (1), the essentials of this provision are that it covers the statements made during the course of the investigation. Investigation as per Section 2(h) CrPC refers to all the proceedings conducted by the police officer to collect the evidence associated with the crime. The investigation starts with identifying the nature of the crime, i.e., cognisable or non-cognisable, and ends with the final report under Section 173 CrPC.

• The statements must be reduced in writing.
• Statements must be in accordance with Chapter XII of CrPC, which reads as information to the police and their powers to investigate. 
• The statements must be given to the police officer.
• Such statements should not be signed by the person making them.
• Such statements may not be used for the purpose of providing evidence during the inquiry or trial.
• The statements must be related to the offence under investigation when such statements were made.

Proviso to Subsection (1) of Section 162 CrPC

• The person whose statements are recorded in Subsection (1) shall be called a witness for the prosecution in such an inquiry or trial.
• Any part of his statement, if duly proved, may be used by the accused to contradict such a witness as per Section 145 of the IEA.
• Such statements can be used by the prosecution only if permitted by the court.
• Any part of such a statement can be used in re-examination as well as for explaining any matter referred to in his cross-examination.

Subsection (2) of Section 162 CrPC

It outlines exceptions to the provision. Section 27 IEA, which states about the discovery of some material fact, and Section 32 IEA, which states about the dying declaration.

Explanation of Subsection (2)

Any omission that is of significance in the context pertaining to the matter in question will be considered a contradiction. Any omission that amounts to a contradiction will be considered as a question of fact.

Objective of Section 162 CrPC

The provision has been added to the law for the benefit of the accused. The statements given during the investigation in front of the police may have been obtained by coercion or force; hence, they are considered inadmissible as evidence in court.

In the case of Tehsildar Singh v. The State of Uttar Pradesh (1959), the Apex Court stated that it is assumed that the statements given to the police during the investigation were not made under circumstances that were reliable.

This provision protects the rights of individuals by preventing the misuse of statements by the police.

Admissibility of statement given to police as evidence

The statements given to the police cannot be used for any purpose, as per the provision. The statements given to the police are neither given on oath nor tested through cross-examination; hence, they are not admissible as evidence in the courts. Whereas if the person is called as a witness during the trial and gives statements to the police, his statements can be used for the purpose of contradiction and to prove any material omission.

It is assumed that the police cannot be trusted to record the statements transparently, and they can be biassed as well. It is a notable fact here, as also stated in the case of the State of U.P. v. M.K.Anthony (1985), that the provision does not make the statement inadmissible just because it was signed by the maker of the statement in front of the police officer during the investigation. Instead, the statement made in front of the police and signed by the maker cannot be used as evidence or for any other purpose during an inquiry or trial.

The statements can be used for any other proceeding. The statements can be used even during the inquiry or trial, but for any other offence that was under investigation when such a statement was made.

Use of statements for contradiction

Contradiction can be understood as if a witness testifies before the court that some fact existed without stating the same in the statements given to the police. The fact that is revealed in front of the court without revealing it prior in front of the police cannot be considered a substantive piece of evidence directly. Hence, the statements given in front of the police can be used for corroboration and contradiction.

Omission of fact

An omission means to skip something or to slip on something. If a certain fact is testified in court during the examination in chief as per Section 137 of the IEA and the same is omitted in the statements given to the police during the investigation, it is considered a contradiction. The statements given to the police can be used to prove such an omission.

Such an omission should be material and significant in nature to be considered a contradiction.

In the case of Tehsildar Singh v. The State of Uttar Pradesh (1959), the Apex Court held that vital omissions that result in vital contradictions can be proved by cross-examination.

In the case of Ponnuswamy Chetty v. Emperor (1933), the question issue, in this case, was whether a statement made by a person to the police during an investigation under Section 162 CrPC could be used during the course of the inquiry to show the contradiction. The Madras High Court stated that the statements under this provision can be used for the purpose of contradiction only. If they are to be used for this purpose, then they must be duly proved and used in the manner laid down in Section 145 of the IEA. A bare omission cannot be considered a contradiction, and both are never identical. Contradiction means to speak against the statements given before. Silence cannot be considered a contradiction since it is not a word.

Further, in the case of State Rep. by Inspector of Police v. Saravanan (2008), it was observed that the contradictions/omissions must be of such nature that they materially affect the trial. Minor contradictions, inconsistencies, embellishments, or improvements that do not affect the core of the prosecution case should not be grounds to reject the evidence of the witness in its entirety.

Dying declaration

The dying declaration is the statement made by the victim to the police stating his cause of death or the person who is responsible for his death. The dying declaration works on the principle of ‘nemomoriturus prae-sumitur mentire’ which means a man will not meet his maker with a lie in his mouth. This is the reason why courts consider it as the sole basis for convicting the accused.

The dying declaration is mentioned in Section 32(1) of the IEA. The burden of proving the dying declaration is on the prosecution.

The dying declaration must be made by the deceased only. In the case of Suchand Pal v. Phani Pal (2003), the Supreme Court held that the declaration made by the deceased cannot be called a dying declaration because it was not voluntary and answers were not given by the deceased.

In Sham Shankar Kankaria v. State of Maharashtra (2006) the Apex Court held that the person on the death bed will not lie and hence will be serene in nature. This was considered as a sufficient reason for truthfulness. Therefore, examining the dying declaration on oath or cross-examination is not necessary. Excluding the dying declaration from the evidence will lead to a miscarriage of justice, as the victim is often the only eyewitness to serious crimes.

Discovery of some material fact under Section 27 IEA

Section 27 of the IEA is also an exception to Section 162 CrPC, which states that admission of confession by the court results in the discovery of some material facts. In simple terms, any confession made by the accused in front of the police that reveals some material fact is admissible in the court of law, which is not otherwise admissible as per Section 162 CrPC.

This is also known as the doctrine of confirmation, which states that in order to make any statement admissible made by the accused in front of the police, every part of the statement should be necessarily confirmed by the subsequent events of discovery.

It reminds us of a popular saying that nothing is settled until it is settled right.

Importance of Section 162 CrPC

This provision holds great significance to meet the ends of justice and fair trial. This protects the rights of the accused. It is assumed that the statements recorded by the police can be obtained by coercion and threat and are not on oath; hence, they are inadmissible as evidence. This restriction on the use of the statements of the accused given to the police officer prevents the misuse of power by the police.

The statements recorded by the police are usually taken in a haphazard manner, i.e., between caution and confusion, which makes it difficult to rely on the statements for corroboration. As per the suggestions of the law commission, the statements cannot be used for corroboration but can be used for contradiction.

The statements given under this provision can be used if they are given by the prosecution witness. These can be used by the defence and by the prosecution if permitted by the court.

The statements made by the defence witness cannot be used to contradict him, as it would be improper to allow the opposite party to contradict the witness on the records prepared by them. 

In the case of Baliram Tikaram Marathe vs. Emperor (1944), the Bombay High Court held that “the object of the section is to protect the accused both against overzealous police officers and untruthful witnesses.”

Procedure of recording contradictions in evidence

The procedure for the same is given under Rule 29 of Chapter VI of the Criminal Manual. The witness who made the statements under Section 161 CrPC is informed about the portion of the statement that is going to be used for contradiction. The witness is then questioned about such statements. If the witness admits that the statements were made by him in front of the police, then such admission requires no proof. But if the witness denies that the statements were not made by him then in such a case, contradiction comes into play. The court records such statements and gives the exhibit number thereon. This is how contradictions are taken on record. The investigating officer is then questioned about the statements made by the witness. If the investigating officer gives an affirmative answer, then the said contradiction is said to be proved.

Judicial pronouncements surrounding Section 162 CrPC

Baliram Tikaram Marathe and Ors. v. Emperor (1944)

Facts of the case

This case is one of the very serious disorders that arise in maudha. The story begins on 13 August 1942, the day following the disturbances in Nagpur. The unlawful assembly consisted of people from Nagpur, Baroda, and Maudha. A meeting was held at Mauza Baroda, which lies between Nagpur and Maudha. This meeting was attended by some residents of the village and was addressed by Budhgir and Ramchandgir, Appellants in this Court, and one Sheluker Master. After instigating the people who attended the meeting by relating them to the disturbances in Nagpur. The next day, people from different cities gathered at Maganlal Bagdi’s bungalow. They issued out and cut some big trees on the roadside and laid them across the road that runs from Nagpur to Maudha, causing some damage to a culvert and the Kanhan bridge providing access to Maudha, in order to disturb the communication between Nagpur and Maudha. 

The volunteers of ‘Nagar Saurakahak Dal’, which came into existence to relieve distress due to the widespread devastation caused by a flood, were instigated to burn the police station houses. Maganl Bagdi and some other members, who were the nucleus and motive force of this unlawful assembly, absconded. The trial proceeded jointly against the people from Maudha and Baroda and one man from Nagpur. An application was made on behalf of the accused, asking for copies of witness statements, which were reduced to writing by the police officer. The application was rejected, stating that no copies could be supplied except those of four witnesses whose statements appeared before the Special Judge, answering the requirements of Section 162, CrPC.

Issues in the case

The question involved in the instant case was whether there had been a fair trial or not.

Held

The High Court of Nagpur held that the statements recorded under Section 162 cannot be used for any other purpose except contradiction by the accused. The object of this provision was clarified, stating that the object of the section is to protect the accused both against overzealous police officers and untruthful witnesses. The appeals were dismissed.

Tehsildar Singh and Another v. The State of Uttar Pradesh (1959)

Facts of the case

The facts of the case are that Asa Ram and Bankey were two informers of the police who acted as information for Charna’s gang, which was a notorious gang responsible for murder and dacoities. Once, a music performance was performed in front of Ram Saroop’s house, which was attended by a large number of people including two police informers, Bankey and Asa Ram. The accused arrived with 15-20 people with the intention of killing these two informers and started firing, in which two persons were killed. Bharat Singh was one of the two dead and was misidentified by the accused as informer Asa Ram. The appellant in the instant case, along with seven other co-accused, was sent to trial.

The defence alleged that the prosecution had built up its case. The defendants contended that the police statements of the eyewitness did not mention the facts regarding the dead bodies and the presence of the gas lantern, and the defence counsel puts the following two questions with respect to these omissions to the first eyewitness produced:

1. “Did you state to the investigating officer that the gang rolled the dead bodies of Nathi, Saktu, and Bharat Singh and scrutinised them, and did you tell him that the face of Asa Ram resembled that of the deceased Bharat Singh?”
2. “Did you state to the investigating officer about the presence of the gas lantern?”

The session judge disallowed these questions and convicted the accused under Section 302 of the Indian Penal Code. The appeal was then made before the Supreme Court.

Issues in the case

The question of the construction of Section 162 CrPC was raised in the appeal before the Hon’ble Apex Court.

Held 

The Hon’ble Supreme Court held that a statement in writing made by a witness before a police officer in the course of an investigation can be used only to contradict his statement in the witness box and for no other purpose.

Statements that are not reduced to writing by the police officer cannot be used for contradiction. A statement that can be deemed to be part of an expressly recorded statement 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.

The appeal was dismissed.

R M Malkani v. State of Maharashtra (1972)

Facts of the case

In the present case, Jagdishprasad Ramnarayan Khandelwal was diagnosed with acute appendicitis and hence was admitted to the nursing home of Dr. Adatia on 3 May 1964. After keeping the patient under observation for 24 hours, the condition of the patient became serious. The patient developed paralysis of the ileum. He was removed to Bombay Hospital on 10 May. 1964 to be under the treatment of Dr. Motwani. The patient died on 13 May 1964. The hospital issued a Death Intimation Card as “paralytic ileus and peritonitis following an operation for acute appendicitis”. The appellant allowed the disposal of the body without ordering a post-mortem. An inquest was already ordered from the police station for the same. It was the practice of the coroner’s court to send letters to professional people concerned with an inquest to get the explanation of the doctor who treated or operated on the patient. The appellant was ordered to call Mr. Adatia. Dr. Adatia was asked by the appellant to meet Dr. Motwani so that the latter could get in touch with the appellant to resolve the technical difficulties. The appellant asked for a sum of Rs. 20,000 from Dr. Adatia through Dr. Motwani and he refused to pay the same.

Dr. Motwani and Dr. Adatia decided to lodge a complaint with the Anti-Corruption Bureau on being harassed by the calls of the appellant. Mugwe and the Assistant Commissioner of Police, Sawant, attached tape recording equipment to Dr. Motwani’s phone and asked him to call the appellant. The conversation was recorded on the tape. Mugwe then opened an investigation. The appellant was charged under Sections 161, 385, and 420 read with Section 511 of the Indian Penal Code.

Issues in the case

The issue raised in the case was whether the tape-recorded conversation was admissible as evidence or not. The question was whether the recording was obtained in an illegal manner in contravention of Section 25 of the Indian Telegraph Act, 1885, and therefore the evidence was inadmissible.

Held 

The Supreme Court held that there was no violation of Section 25 of the Indian Telegraph Act, hence the tape recording was admissible as evidence. The appellant’s conversation was free from any duress or compulsion. The attachment of any recording instrument was not known to the appellant. The statements were not directly made to the police officer hence, they cannot be considered as a bar under Section 162 of the CrPC.

Munna Pandey v. State of Bihar (2023)

Facts of the case

In the present case, the appellant was sentenced to death for committing the rape and murder of a 10-year-old girl. The accused and co-accused were charged under Sections 376(2)(g), 302 read with Section 34, 120B of the IPC and Section 4 of the POCSO Act. The co-accused raised the plea of being juvenile after the framing of charges. The case of the co-accused was referred to the juvenile justice board in Bhagalpur, and the trial court proceeded against the appellant only. The appellant, aggrieved with the judgement of the trial court, made the appeal to the High Court of Patna. The High Court of Patna dismissed the appeal and upheld the decision of the trial court. The appeal was then made before the Supreme Court.

Issues in the case

The issue in this case was that during the trial there were glaring contradictions between statements given by the witness to police during the initial investigation and their subsequent testimony in court.

Held 

The Apex Court held that nothing in Section 162 CrPC bars the trial judge from taking suo moto action and looking into the papers of the charge sheet. He can use the statements given to the police for the purpose of contradiction when such a person gives evidence in favour of the state as a prosecution witness. The judge may himself do this or may makeover the statement to the lawyer of the accused for him to use it.

The Apex Court set aside the case and sent it back to the High Court to reconsider the death reference.

Section 181 Bhartiya Nagrik Suraksha Sanhita, 2023

Chapter XII, which earlier dealt with information to the police and their powers to investigate, will now be replaced by Chapter XIII, the Bharatiya Nagarik Suraksha Sanhita, 2023 (hereinafter referred to as BNSS). Section 162 CrPC will now be replaced by Section 181 BNSS. No changes have been made to the provision.

Conclusion

The procedure as laid down in the CrPC, which makes the statements given in front of the police during the course of the investigation inadmissible as evidence, is a deliberate step and necessary for the protection of the rights of the accused. The absence of this provision would have increased the scope of injustice for the accused and increased the misuse of power by the police officers. On the other hand, the exceptions such as using the statements for contradiction, dying declaration, etc. of this provision are equally important to uphold the principles of justice and hence cannot be overlooked.

Frequently Asked Questions (FAQs)

What is the difference between Section 161 and 162 CrPC?

Section 161 gives the police officer the power to examine and record the statements of any person who’s aware of the facts and circumstances of the case at hand. Whereas Section 162 puts a bar on the usage of statements recorded under Section 161. It states that the statements recorded by the police officer during the investigation cannot be used for any purpose except for the contradictions and omissions resulting in a contradiction.

What is the purpose of Section 162 CrPC?

The purpose of this provision is to put a bar on the use of the statements given to the police officer under Section 161 during the course of an investigation for the purpose of providing evidence during an inquiry or trial. The objective of this provision is to protect the rights of the accused.

Can the statements recorded by the police officer during the investigation be used for contradiction?

Yes, the statements recorded by the police officer during the course of the investigation can be used for the purpose of contradiction. Section 162 gives an exception for the use of the statements given during the course of the investigation for the purpose of contradiction. The prosecution shall obtain prior information from the court to use such statements for contradictions.

What is the significance of Section 162 CrPC?

This provision holds great significance to meet the ends of justice and a fair trial. This protects the rights of the accused. It is assumed that the statements recorded by the police can be obtained by coercion and threat and are not on oath; hence, are inadmissible as evidence.

What kind of omission is considered a contradiction under Section 162 of the CrPC?

The omission of material and significant nature are considered to be a contradiction. An omission means to skip something or to slip on something. If a certain fact is testified in court during the examination in chief as per Section 137 of the Indian Evidence Act and the same is omitted in the statements given to the police during the investigation, it is considered as a contradiction. The statements given to the police can be used to prove such an omission.

What are the exceptions under Section 162 CrPC?

The following are the exceptions under Section 162 CrPC:

• Use of statements for contradiction. 
• To prove the omission of facts.
• Dying declaration under Section 32 IEA.
• Statements stating the discovery of some material fact under Section 27 IEA.

Is the inquest report covered under Section 162? 

In Narpal Singh v. the State of Haryana,(1977), the Supreme Court ruled that statements made in inquest reports are also governed by Section 162 of the Evidence Act and are inadmissible in evidence if the signatories were not examined as witnesses. Section 174 of the CrPC deals with the inquest reports. Inquest reports are reports prepared by the police in the case of unnatural deaths or suspicious deaths. It provides preliminary information regarding the cause and circumstances that are relevant to the death. The objective of the inquest report is to investigate the reasons behind the unnatural death.

Is FIR covered within Section 162? 

In the case of Arnab Ranjan Goswami v. Union of India (UOI) and Ors.,(2020), the Apex Court stated that all other information made orally or in writing after the commencement of the investigation into the cognisable offence disclosed from the facts mentioned in the first information report and entered in the station house diary by the police officer or such other cognisable offences as may come to his notice during the investigation will be statements falling under Section 162 of CrPC. No such information/statement can properly be treated as an FIR, and entered in the station house diary again, as it would in effect be a second FIR and the same cannot be in conformity with the scheme of the Code of Criminal Procedure.

References

• https://gyansanchay.csjmu.ac.in/wp-content/uploads/2022/09/evidentiary-value-of-statements-articles-seized-collected-by-the-police.pdf
• https://districts.ecourts.gov.in/sites/default/files/scjrajam.pdf
• https://districts.ecourts.gov.in/sites/default/files/2-Scope%20of%20Statements%20recorded%20-%20Sri%20N%20Rajasekhar.pdf
• https://www.livelaw.in/supreme-court/section-162-crpc-does-not-prevent-a-trial-court-from-putting-questions-to-witnesses-suo-motu-to-contradict-them-supreme-court-237020#:~:text=Section%20162%20CrPC%20provides%20that,first%20proviso%20to%20the%20Section.