This article is written by Anjali Sinha, a legal professional. The article is an exhaustive discussion of Section 162 of the Code of Criminal Procedure. The provision is supported by landmark judgements, including the views of the court in cases relating to one of the most controversial provisions connected to the authenticity of the signature of a witness and also the witness during the police investigation. 

It has been published by Rachit Garg.

Introduction 

A person who is being interrogated under Section 161 of the Code of Criminal Procedure (CrPC), 1973, is required to honestly respond to all questions, with the exception of those that are self-incriminating. 

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Both Section 161(2) of the Criminal Procedure Code and Article 20(3) of the Constitution of India provide protection. 

Statements recorded under Section 161 of the CrPC cannot be used as substantial evidence either in the accused’s favour or against him or her. 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. 

According to Section 162 of the CrPC, in order to be “duly proved,” a witness for the prosecution must first be cross-examined in court. Statements made in accordance with Section 161 cannot be verified.

What does Section 162 CrPC say

The language of Section 162 CrPC is clear and distinct and leaves no room for doubt about its meaning. Section 162 of the CrPC provides for the limited use of statements and prohibits the court from using them to support statements made in court. 

The course of the investigation for the purpose of verification is complicated. The police cannot be relied upon to record the statement correctly and it is often deleted in an unspecified way amid the confusion. 

Admissibility of evidence to the police 

Any statement recorded by the police during the investigation is not given under oath or verified by cross-examination. According to the Indian Evidence Act, 1872, the circumstances stated there are not considered factual evidence. But if the witness is called during the case at the trial, his previous statements could be used according to the normal rules of evidence to confirm his testimony in court or show how his earlier testimony was contradicted. 

Cr.P.C. Section 162  prohibits the use of statements made to the police during the course of the investigation. It is assumed that you cannot rely on the correct recording of the statements by the police or rely on the statements, as the police can record statements for personal gain. The full use of statements made to the police is not prohibited by the officers.

The prohibition in Section 162 of the Code of Criminal Procedure against signing the statements of witnesses recorded during an investigation stems from historical distrust in the fidelity of the statements of investigating officers. This practice helps lying police officers shape their statements the way they want, sometimes to the total consternation of witnesses. This helps the prosecution cross-examine a witness if the witness gives conflicting evidence at trial. And it is not impossible for the police to record a contradictory statement even in the case of a true witness who had to say the same thing to the police and in court. This statement in the case diary often helps to acquit the accused if the court does not handle the case carefully. This is evident from a review of some recent court decisions.

Importance of Section 162 CrPC

According to Section 145 of the Evidence Act, 1872, statements made in compliance with Section 161 may only be used to prove a contrary statement. 

It is important to keep in mind that the bar under Section 162 is inherently a right granted to the accused and must be scrupulously adhered to since exceptions cannot outweigh the general norm itself.

The section contains the following three conditions:

  1. The statement needs to be put in writing.
  2. Calling witnesses for the prosecution is required. 
  3. The textual assertion needs to be properly proven.

With the exception of statements made in accordance with Sections 27 and 32 of the Indian Evidence Act, 1872, a dying declaration recorded by a police officer during the course of an investigation becomes relevant under Section 32 of the Evidence Act in view of the exemption provided by Section 162(2). Also, the legislature intervened and added the words “or to affect the provisions of Section 27 of that Act,” thus allowing Section 27 to override the prohibition in Section 162(1) in so far as “facts discovered” are concerned.

Statements given by the witness include both explicit and implicit declarations. 

As per judgement of Pukhraj Pannalal Shah and Ors. v. K.K. Ganguly and Anr. (1967), customs officials and members of the railway protection force as per railway jurisdiction are not police officers. 

Judicial pronouncements 

Tahsildar Singh v. State of U.P. (1959)

Tahsildar Singh is the most notable judgement in terms of omissions and contradictions. All judgments discussed below are directly or indirectly based on this case. The court ruled that testimony by witnesses under investigation must be in writing. Moreover, such statements should not be used for any purpose other than to contradict him on the witness stand. He stressed Section 162 of the CrPC together with Section 145 of the Indian Evidence Act of 1872. Any discrepancies between your testimony to the police and your testimony in court will be treated as discrepancies. It showed three typical situations in which an omission is considered a contradiction. 

  • If recitation is necessarily implied by the recitation of the statement – ​​X said that he saw A robbing a house during a police investigation, but in court both A and B robbed a house. If you say you saw. In your previous statement, this implied that  A was the only robber. 
  • The negative aspect of positive consideration in a statement – ​​X says before the police officer the thief was a small man, but in court, he says X said the thief was a big man and that the thief was not a small man. 
  • If the statements to the police and the court were not simultaneously true, X told the police officer that A ran left and on the witness stand said A ran right. Both statements cannot be true together. 

Therefore, an omission can be treated as a contradiction if any of the three conditions are met.

Baleshwar Rai v. State of Bihar (1962)

It was held that “Section 162 of the Code of Criminal Procedure only prohibits the proof of statements made during the course of the investigation. Section 162 of the Code of Criminal Procedure does not prevent any statement from being authenticated during the course of an investigation. The statement to fall within the ambit of Section 162 must be made not only during the period of  investigation but also during the investigation. Two things, viz., “Period of investigation” and “proceedings of the investigation,”  are not synonymous. Section 162 is intended to record statements to the police during the investigation of a crime. These are the obvious introductory words in Section 162. Only statements made to the police are discussed during the investigation. This means that the statement was intended to be omitted, and the evidence must be relevant to the inquiry conducted by the inquiry officer.

Harkirat Singh v. State of Punjab (1997)

The judgement of the Supreme Court in the case of Harkirat Singh v. State of Punjab (1997) provides for a case where the court may acquit the accused for lack of  recording his statement. 

In this case, the FIR was filed only against the accused, Harkirat Singh, for being armed with a pistol and firing the fatal shot at Khairati Ram. It was mentioned that the second accused was not carrying a gun. Whistleblower Walaiti Ram, who was an eyewitness to the incident and  lodged the FIR, died before the district court could examine him. Only prosecution witnesses (PW) 4 and 5 supported the prosecution’s version of the statement in court, in which it was stated that the accused Harkirat Singh is the one who shot and caused the death of the victim. But the case diary showed that both witnesses told the police that Harkirat Singh was armed with a pistol and that the other accused, Raghbir Singh, had a pistol and that he had shot the deceased. The district court acquitted the four accused but convicted Harkirat Singh. 

The High Court, in upholding the conviction of Harkirat Singh, rejected the conflicting statements of these witnesses in the case diary and observed: 

“Prosecution Witness 4 Kharaiti Lal has given his statement in the investigation proceedings, and a perusal of it shows that he has mentioned in his statement that  Harkirat Singh fired with a pistol. It is clearly mentioned in the first information report itself that Harkirat Singh fired.” 

The statement of the preliminary investigation report according to Section 161 of the Criminal Procedure Code was recorded on the same day, i.e., November 29, 1986. The discrepancy between these two documents shows that the investigation of this case was not conducted fairly. It seems that an attempt was made to benefit Harkirat Singh.

Allowing Harkirat Singh’s appeal, the Supreme Court commented as follows: 

“In our opinion, the Court of Appeal was not justified in considering the alleged statement of Kharaiti Lal as evidence in the preliminary proceedings because of the embargo imposed under Section 162. Equally unjustified was the reliance of the Court of Appeal on the FIR lodged in the pre-trial of Walaiti Ram, which, as stated earlier, was not handed over during the proceedings to see how he later died. The contents of the FIR could be used to confirm or disprove Walait Ram if he was to be investigated, but in any case not as physical evidence.”

It is respectfully submitted that the Hon’ble Supreme Court seems to have misunderstood the analysis of the High Court. The Supreme Court highlighted the circumstances that it is highly unlikely and contrary to the common practice that the witnesses who deposed in the pre-trial proceedings as per the FIR that Harkirat Singh shot the deceased could have on the same day recorded the statement under Section 161. Therefore, the Supreme Court rightly rejected the manipulated contradictory statement of the case diary and allowed the testimony of these witnesses to pass the reliability test. The FIR, statements and investigation report were advertised only to find out whether the subsequent statement given under Section 161 of the Criminal Procedure Code was credible, to affect the credibility of the witness’s testimony at trial.

State of U.P. v. Harban Sahai (1998)

A special leave petition had been filed in the Harban Sahai case to challenge the Allahabad High Court’s ruling acquitting four people charged with murder. One of the reasons given by the High Court was that the bloodstain samples taken by the examiner were not sent to the laboratory for testing, thus distorting the test. The Supreme Court dismissed this reasoning, noting that such trivial omissions are not considered to distort the investigation. Again, the court clarified its position by stating that omissions must be so substantive as to affect credibility, which was not the case here.

Shashidhar Purandhar Hegde v. State of Karnataka (2004)

In this case, the applicant was accused of kidnapping a minor and demanding ransom from relatives. The judge found the testimony of the prosecution witnesses  to be inconsistent, as there were minor differences in the testimony of some of the witnesses. These differences were insignificant and did not affect the credibility of the witnesses. 

The  Court of Appeal considered the decision of the Magistrate to be wrong, and the same was confirmed by the Hon’ble Supreme Court. 

The court found that minor differences cannot be considered inconsistent if they do not affect the reliability of the testimony of the witness. In the present case, the negligence was considered to be trivial in nature, so the complaint was dismissed. The court reiterated its earlier ruling that what omission constitutes a conflict is a question of fact and its relevance must be assessed by the court.

Conclusion

Before the trial ever starts, witnesses are questioned by the police as part of the criminal justice system’s crucial witness examination phase, which is governed by a number of legal regulations. 

The simple reason why no one comes forward to be questioned as a witness these days is because of the police brutality and harassment that occurs when witnesses are questioned. Earlier, it was evident that there were willing witnesses, but this is no longer the case. 

It is only one side of the story because not all police investigate witnesses in the same manner; many do it with tact and decency, which has led to some people now also believing the police when they do so. 

Frequently Asked Questions (FAQs)

What distinguishes Sections 161 and 162 of the CrPC from one another?

Any person who is considered to be familiar with the facts and circumstances of the case may be subjected to an oral examination by a police officer under Section 161. The next section is Section 162, which states that no statement made to a police officer must be signed by the speaker if it is reduced to writing.

Can the police bring a case without any proof?

A police complaint known as a “zero FIR” is one that lacks any supporting documentation or is a legally actionable offence. It is employed when there is insufficient proof for the authorities to open an investigation and file charges against anyone. The police may choose to submit a zero FIR for a number of different reasons.

References 


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