S.

164
Distinction between recording of statements of accused and of witnesses. There is a vital
distinction between recording statements of accused persons and the recording of
statements of witnesses. The same precautions which are prescribed for recording the
confession of accused persons need not be observed while recording the statements of
witnesses, and, therefore, it is not necessary to exclude the police from the Court, though
the Magistrates have the power, if they think it necessary to ensure the voluntary
character of the witnesses’ statements and have any reasons to apprehend that the police
are exercising influence over them, to exclude the police or in fact any others from the
Court during their examination under this section. But they are not required to do so by
law and the practice is likely to lead to the statements of witnesses being incomplete, as
only the police who have investigated the case know the information which the witnesses
are likely to give, and the Magistrates without their help will not be able to elicit all
that the witnesses are able to speak to. In such a case, it is difficult to discount the
evidence of the witnesses in Court if their statements under this section contain any
omissions and are, therefore, not fully corroborative of the evidence in Court
It is well settled that a statement recorded under s. 164 Crpc can never be used as
substantive evidence of truth of the facts but it may be used for contradiction or
corroboration of the witness who made it. Such a statement can be used to cross-
examine the maker of it and the result may be to show that the evidence of the witness
is false.11 A statement of witness recorded under s. 164 of the Crpc can very well be
admitted into evidence and be marked as exhibit without the Magistrate who recorded the
statement being examined in Court. But, such statement not being a substantive piece of
evidence can only be used either to contradict or to corroborate the maker thereof. It is,
however, a formal statement made before an authority competent to investigate a fact.
The statements under this section are not made in the presence of the accused, and there
is no right or opportunity of cross-examining the witnesses at that stage. The statements
can, therefore, be used only for a very limited purpose : either to impeach his credit, if
he makes a different statement subsequently, or to corroborate, if he makes a similar
statement.
A Magistrate recording a statement or confession under this section, performs a judicial
act and the record will be a public document within the meaning of s. 74 of the Evidence
Act.82 The statement recorded under s.164 Crpc is a public document, it does not require
any formal proof by summoning the Magistrate to prove his handwriting or signatures.
Where the accused while under police custody wrote out his confession and when
brought before the Magistrate, handed it over to him after answering the usual questions,
the procedure did not amount to "recording" a confession. Recording means writing down
and not merely filing the confession. A confession not written down by the Magistrate
himself is inadmissible in evidence
The Court of Appeal is not precluded from inquiring into the nature of a confession, to
see whether it was voluntary or not because the recording Magistrate attached at its foot
the memorandum, prescribed in s. 164. It is a duty clearly incumbent on the Court of
Appeal, when the spontaneity and voluntary nature of the confession is impugned.
For summoning additional accused under s. 319, the Court cannot take into account the
statement recorded under s. 164. It has to take evidence in the inquiry or the trial, as
the case may be, before summoning persons not yet arraigned as accused.
It is one of the vital principles of the administration of criminal justice, which is
universally acknowledged, that in a criminal trial the Court should not proceed ex parte
against an accused person
S. 165-166
Sections 165 and 166 CrPC relate to the searches and not to the discoveries in pursuance of any
disclosure statement under s. 27 of the Evidence Act, 1872.
There is nothing in Art. 20 of the Constitution or in any of its other Articles to prohibit the police
from searching either the person of the accused or his premises in the manner laid down by the
Code.
The Supreme Court held that the failure to comply with the provisions regulating searches may
cast doubt upon the bona fides of the officers conducting the search, but when once the evidence
has been believed, it is obviously no defence to say that the evidence was obtained in an irregular
manner. There is nothing in law which makes such evidence inadmissible. Thus, according to the
Supreme Court, the noncompliance with the provisions of s. 165 Crpc is not fatal
No Police Officer shall be compelled to say source whence he got any information as to the
commission of an offence. See s. 125 of the Evidence Act, 1872.
The Court can only call upon the police to produce the property. The Court cannot direct the
surety to produce the property in Court. See also the Comments under s. 102(3).
166A
Use of evidence collected in violation to the Letter Rogatory and undertaking given by the
prosecution as well as the Central Government, under s. 166 -A of Code of Criminal Procedure,
would, in strict sense, render the trial unfair and evidence inadmissible.