S.

161
An accused is entitled to have assistance of his lawyer during examination by the police. An
accused is entitled to have assistance of his lawyer during examination by the police.
S. 162
The investigating officer must record the statements of eye-witnesses of the occurrence at the
earliest opportunity after the registration of the case. If he deliberately fails to record their
statements for considerable long period after reaching the place of occurrence, the evidentiary
value of the statements of witnesses so recorded subsequently is much diminished and even the
presence of the witnesses at the scene of occurrence become doubtful
A Statement made to a Police Officer by any person examined in the course of investigation
recorded under s. 161 of the Code is not and cannot be treated as substantive evidence except
when falling within the provisions of clause (1) of s. 27 of the Evidence Act.
Recording of statement under s. 161 Crpc is a judicial proceeding.
Statements given by the accused to police during investigation of the crime and recorded under s.
161 of the Code even if it is false will not constitute an offence under s. 203 of the IPC.
The Supreme Court has interpreted the scope of Art. 20(3) of the Constitutionvis-a-vis, s. 179,
IPC, and s. 161(2), Crpc in Nandini Satpathy’s, case. It has held : the accused "shall answer all
questions put to her which do not materially incriminate her in the pending or imminent
investigations or prosecutions. If she claims immunity regarding any questions she will, without
disclosing details, briefly state in which case or offence in the offing makes her reasonably
apprehend self-incrimination by her refused answers". If after the examination is over, the Police
Officer examining her reasonably regards any refusal to answer to be a wilful violation under
pretence of immunity from self-incrimination, the accused can be prosecuted under s. 179, IPC.
But the actual proceeding commenced to prosecute the accused under s. 179, IPC, was quashed
by the Supreme Court because directing a woman to come to the police station for interrogation
contrary to the proviso to s. 160(1), Crpc, negated voluntariness.42 On the scope of s. 161, Crpc,
and the right of the accused not to reply, the Supreme Court upheld the view of the Orissa High
Court.43 In view of the pronouncement of the Supreme Court on this question, the statement in
the following case,44 viz., "There is no obligation on the part of the accused person to make any
statement to the police" cannot be said to be good law
A refusal to answer questions asked by a Police Officer under s. 161 of the 1898 Code was not
punishable under s. 176, s. 179 or s. 187, IPC as under the Code there was no obligation to speak
the truth as there was under the 1882 Code.57 Under the present section, however, as the law
now stands there is an obligation to state the truth. A statement made to the police under the
provisions of this s. is not an "information given to a public servant" within the meaning of s.
182, IPC.
The question whether statements under s. 161, Code of Criminal Procedure, recorded by the
police in an investigation can be made use of at a civil trial for contradicting witnesses was left
undecided.
Failure to comply with provisions of Section 161(3)—Effect of. Sections 161 and 162, in effect,
contain legislative safeguards to protect an accused from overzealous and foolish act ion of the
police and so the non-compliance with provisions cannot be lightly treated.62 Failure to perform
the duty enjoined by the law constitutes a flagrant attempt to circumvent the law and thereby to
defeat the right which law bestows on the accused under s. 162.
The legal position is well settled that mere delay in the examination of a particular witness does
not, as a rule of universal application, render the prosecution case suspect. It depends upon
circumstances of the case and the nature of the offence that is being investigated. It would also
depend upon the availability of information by which the investigating officer could reach the
witness and examine him. It would also depend upon then explanation, if any, which the
investigating officer may offer for the delay. In a case where the investigating officer has reasons
to believe that a particular witness is an eyewitness to the occurrence but he does not examine
him without any possible explanation for any such omission, the delay may assume importance
and require the Court to closely scrutinize and evaluate the version of the witness but in a case
where the investigating officer had no such information about any particular individual being an
eye-witness to the occurrence, mere delay in examining such a witness would not ipso facto
render the testimony of the witness suspect or affect the prosecution version.46 The Court found
no reason to reject the testimony of the witness only because his statement under s. 161 Crpc was
recorded a month and half after the occurrence
Variations in the statements recorded under this section and those recorded during the trial are
natural.29 The contradictions and omissions in the previous statements are the best material to
impeach the testimony of a witness.
S. 162
Effect of this section on Section 8, Evidence Act. In the Full Bench case of Syamo Moha Patro v.
Emperor, 73 Waller, J., held that although statements made by the accused to the Police Officer
during investigation are inadmissible under this section evidence of their conduct is admissible
under s. 8 of the Evidence Act. But Pandalai, J., held that statements explaining their conduct are
also admissible under s. 8 of the Evidence Act. In the subsequent case of Krishna Iyer, In re.74
statements sought to be admitted as explaining conduct were held to be inadmissible on the
ground that they were not explanatory of the conduct.
Section 162 (1) is an application of the rule against hearsay evidence contained in s. 60 of the
Evidence Act. It repeals, by implication, s. 157, Evidence Act, so far as it concerns statements
made to a Police Officer in the course of an investigation and has the further effect of modifying
s. 155 of the Evidence Act.84 The general provisions of the Evidence Act contained in s. 157 are
controlled by the special provisions of this section which is a special enactment, as against the
wider and more general enactment in the Evidence Act.85 The statement recorded by the police
in the course of an investigation cannot be used by the prosecution for the purpose of
corroborating the statement of that witness under s. 157 of the Evidence Act.86 The whole
scheme of the section is that this section is to be used only for the benefit of the accused. The
Legislature has, in making this provision, approved the reasoning of Knox, J., in Rustam v.
Emperor, 87 After the 1923 amendment, therefore there is unanimity of opinion that both the
oral statement and the record of such statement are inadmissible in evidence.
Effect of section on Sections 158 and 159, Evidence Act. A statement otherwise falling under s.
162 would not become admissible merely because it can be brought under s. 158 or s. 159
The Supreme Court has overruled this view in Ragunandan v. State of U.P., 20 It has held : "We
hold that s. 162,Criminal Procedure Code does not impair the special powers of the Court under
s. 165, Indian Evidence Act "
A panch may see certain things or hear certain statement made to him and may himself reduce to
writing what he has seen. The writing in such cases is called a panchnama. It can be used to
refresh the memory of the panch, but it would not be statement made to Police Officer in the
course of the investigation because the panch himself has reduced it to writing. But if a panch
sees something and tells a Police Officer what he had seen and the Police Officer then reduces
into writing what the panch had told him the panchnama would be a record made by the Police
Officer and would be hit by this section
A panchnama made by the police cannot be regarded as a statement made by a panch witness to
the Police Officer, and, if so, it would be hit by s. 162, Crpc. If the panchnama was not made
during the course of the investigation, then it would not be hit by s. 162, Crpc