CODE OF CRIMINAL PROCEDURE

COMPARE STATEMENT UNDER SECTION 161 & 313

ARMY INSTITUTE OF LAW, MOHALI

IN PARTIAL FULFILMENT OF B.A.L.L.B. 5 YEAR DEGREE

Submission To: Submitted By:

Mr. BAJIRAO RAJWADE ABHAY KUMAR TIWARI

FACULTY: 8TH SEMESTER B.A. LL.B. ROLL NO. 1731

CODE OF CRIMINAL PROCEDURE

 ACKNOWLEDGEMENT

This project consumed a huge amount of work, research and dedication. I would like to express
my deepest appreciation to all those who provided me with the possibility to complete this
project work.

A sincere gratitude to our Professor, Mr. Bajirao Rajwade whose superior knowledge and
contribution in stimulating suggestions helped me to coordinate my full effort in achieving the
project.

Furthermore, I would also like to acknowledge with much appreciation the crucial role of
management of Army Institute of Law, who gave the permission to use all required equipment
and necessary material to complete this task of research.

ABHAY KUMAR TIWARI

Roll No. – 1731

INTRODUCTION

Examination of accused u/s.161 CrPC is popularly known as interrogation. The

object of examination of witness u/s.161 CrPC is to produce the evidence before the court
at the time of trial. Further these statements are useful for the court for framing the charge.
Before trial commences copies of these statements recorded by the police should be
furnished to accused free of cost.

Section 313 of the Cr.P.C. gives power to the court to examine the accused. The
purpose of empowering the court to examine the accused under section 313, Cr.P.C is to
meet the requirement of the principle of natural justice audi alteram partem (that no one
should be condemned unheard). This means that the accused may be asked to furnish some
explanation as regards the incriminating circumstances associated against him and the court
must take note of such explanation. In a case of circumstantial evidence, the same is
necessary to decide whether or not the chain of circumstances is complete.1

The current discusses on how far these S.161 and S. 313 CrPC statements are admissible and
relied upon.

SCOPE OF S.161 Cr.P.C STATEMENTS

a) Recording of Statements of Witnesses:

The Police Officer making an investigation should himself invariably examine any person
and record his statement during an investigation. But, in cases where it is impracticable,
the Head constable or the writer attached to the Police Station may record the statements
of witnesses. In that case both the recording officer and the investigating officer should
sign the statement recorded u/s. 161 (3) Cr.P.C. Under this section administering oath or
affirmation is not requisite in an examination.

Here expression ‘any person’ includes accused also.2 So persons to be

examined include whosoever may subsequently be accused of the offence
in respect of which the investigation is made by the police officer. 3 The
person examined in the course of a police investigation is obliged to
answer all questions put to him "other than questions the answers to
which would have a tendency to expose him to a criminal charge or to a

1
Raj Kumar Singh v. State of Rajasthan; AIR 2013 SC 3150)
2
Nandini Satpathi v. P.L.Dani,1978 Crl.J.968SC.
3
The word "any person" in regard to its examination as part of the investigation in s. 161 Cr.P.C. must be read
in conjunction with s. 162 Cr.P.C.; Pakala Narayana Swami, (1939) 66 IA 66: 41 Born LR 428: 18 Pat 234;
VeluViswanathan, 1971 Cr LJ 725. See Ratanlal and Dhirajlal's The Code of Criminal Procedure, op. cit., p. 231.
 penalty or forfeiture." The person questioned is legally bound to state the
truth.4

But the accused has got right to remain silent as he got ‘right against self
incrimination’ as per S.161(2) CrPC and Art. 20(3) of Indian Constitution. 5 But if a witness
examined by the police does not give answers to the questions he can be punishable u/s.179
IPC or if he gives false information he can be punished u/s.193 IPC.

Even though S.161(2) CrPC casts a wide shielding net to protect the formally
accused persons as well as suspects and witnesses during the investigative stage, S.132 of
the Evidence Act limits the applicability of this protection to witnesses during the trial
stage.6

The statements of all witnesses who are acquainted with the facts and circumstances
of the case and who may have to be cited as witnesses in the court are enviable to be
reduced into writing. The statement of each witness should be recorded separately.
Statements recorded by Police Officers u/s.161(3) Cr.P.C should not be in the indirect form
of speech. The language of S.162 Cr.P.C and S.145 of Evidence Act clearly indicates that
the writing should be describable as a statement of the witness himself and further that it
should be as nearly as possible, a complete record of what he has said. S.161(3) Cr.P.C
read together with S.173(3) Cr.P.C clearly indicates that separate statements of all
persons whom the prosecution proposes to examine as its witnesses should be recorded and
copies thereof must be furnished to the accused before the commencement of the inquiry. 7
It shall also be remembered that Police reports and other documents are supplied to the
accused, as per S. 207 Cr.P.C. These provisions should be sternly complied with.8
Statements of witnesses if recorded in the case diary are covered by S.161 and 162,
Cr.P.C. and the privilege assigned to the case diary does not extend to the statements of the
4
A person who gives false information in answer to such questions can be prosecuted under the provisions of
ss. 202 and 203 of the Indian Penal Code. Sankaralinga Kone, (1990) 23 Mad.

5
Panner Selvam vs State Rep. By Inspector Of Police, Crl.R.C (MD).No.259 of 2010.

6
Selvi & Ors. vs. State of Karnataka (2010) 7 SCC 263.

7
Bommabayina Ramaiah v. State of A.P., AIR 1960 AP 160, If the statement is first recorded in a vernacular
language and then translated into English, mere supply of a copy of the English version would not meet the
requirements of law. In such a case, the statement in the vernacular being the original statement, copy of it should
also be furnished to the accused. Muniswamy v. State, 1954 Cr LJ 905 Mysore; In re Rangaswami, 1957 Cr LJ 866
Mad.; Public Prosecutor v. Parasurama Prabhu, 958 Cr LJ 392 Mad.

8
The accused has the right to all the copies of the statements recorded by the investigating agency. Dalla v.
State of Rajasthan, 1988 Cr LJ 42 (Raj.).
 witnesses recorded therein. Only the gist of the statements of witnesses recorded u/s. 161
(3) Cr.P.C need be mentioned in the case diary. The case diaries should be written in the
Form 16-A.

b) Evidentiary Value:

The statements recorded by the police u/s.161 CrPC are not evidence for
prosecution. They can be used by the defence for contradicting the
prosecution witnesses.9 But when the prosecution witness turns hostile,
with the permission of court, the Public Prosecutor can cross examine that
witness by using his 161 statements to establish contradiction.
When 161 statements falls u/s.27 or u/s.32(1) of Indian Evidence Act,
then those statements can be used by prosecution as evidence. S.161
statements are not substantive evidence. 10 Statement of injured witness
was recorded as dying declaration but he survived, then such statement
has to be considered as S.161 statements.11 But 161 statements can be
treated as dying declaration if that person dies.12
S.161 statements can not be used against the accused in criminal
cases.13 But there is no bar to use those statements in civil cases. 14 They
shall not be used for any purpose except to contradict a witness in the
manner prescribed in the proviso to S. 162 (1). Further the FIR is not a
substantial piece of evidence.15 Under S.161 & S. 162 Cr.P.C the Witness
is not confronted with the statement. The Court cannot subsequently use
the statement even for drawing any adverse impression against the
witness.16

9
In Pebam Ningol Mikoi Devi v. State of Manipur and others [(2010) 9 SCC 618], Jayalekshmi vs State Of
Kerala, WP(Crl.).No. 280 of 2015 (S).

10
Sethuraman @ Ramanathan vs State Rep. By, Crl.M.P.(MD).No.2985 of 2016; Md Jafrulla Khan v.
Inspector of police,Hyderabad,2000(2)ALT(Cri)9AP,Ram Swarup v. State of Rajasthan,2005 SCC(Cri)61.

11
Ranjit Singh & Anrs v. State of MP,2011 Cr LJ283(SC).

12
Mukesh Gopal v. State of Gujarat,2010 Cr LJ4721(SC).
13
Bontu Venkata Rao and anr. Vs. Kalla Venkataramana and anr, 2005ACJ77; 2003(3)ALD314

14
Bonta Venkata Rao v. Kolla Venkata Ramana,2003(2)ALT(Cri)572AP.

15
Baldev Singh vs. State of Punjab (AIR 1991 SC 31); Rajendra singh vs. State of U.P – (2007) 7 SCC 378
16
Dandu Lakshmi Reddi vs. State of A.P. (AIR 1999 SC3255).
 If thumb impression or signature obtained, such statements are
unreliable.17 Signing of statement merely puts the Court on caution and
maynecessitate in depth scrutiny of the evidence, but the evidence on this
account cannot be rejected outright.18 Delay examination of witnesses by
police u/s.161 CrPC, if properly explained, is not fatal to the prosecution
case.19

SCOPE OF S. 313 Cr.P.C STATEMENTS

The scope and object of examination of the accused under section 313, Cr.P.C is:
i. to establish a direct dialogue between the court and the accused and to put every
important incriminating piece of evidence to the accused and grant him an opportunity
to answer and explain them. (Sanatan Naskar & Another v. State of West Bengal; AIR
2010 SC 3507);
ii. to test the veracity of the prosecution case.
The examination of the accused is not a mere formality, the questions put to the accused and
answers given by him, have great use.
The scope of section 313 of the Cr.P.C. is wide and is not a mere formality. The object of
recording the statement of the accused under section 313, Cr.P.C. is to put all incriminating
evidence to the accused so as to provide him an opportunity to explain such incriminating
circumstances appearing against him in the evidence of the prosecution. (Sanatan Naskar &
Another v. State of West Bengal; AIR 2010 SC 3507).

In Dharnidhar v. State of U.P. & Others; 2010 AIR SCW 5658, the court held that
the proper methodology to be adopted by the court for recording the statement of the accused
under section 313, Cr.P.C., is to invite attention of the accused to the incriminating
circumstances and evidence and invite his explanation. In other words, it provides an opportunity to
an accused to tell to the court as to what is the truth and what is his defence.

Dehal Singh v. State of Himachal Pradesh; AIR 2010 SC 3594, the court
held that the statement of the accused under section 313, Cr.P.C. is
recorded without administering oath. Therefore, it cannot be treated as
2
Page

17
Gurnam Kaur vs. Bakshish Singh and others – AIR 1981SC 631.
18
State of U.P vs. M.K. Anthony – AIR 1985 SC 48.

19
Banti v. State of MP, 2004 Cr LJ 372 SC.
evidence within the meaning of section 3 of the Evidence Act, 1872.

It is pertinent to reproduce section 313, Cr.P.C. to make further discussion.

 The plain reading of section 313 would clearly show that questioning under clause 1(a) is
discretionary whereas the questioning under clause 1(b) is mandatory as the object is to
afford an opportunity to the accused to personally explain any circumstance, appearing in
evidence against him. (State of Kerala v. Rajappan Nayar; 1987 Cri.L.J. 1256)

Section 313, Cr.P.C. (1) (b) casts a duty on court to give an opportunity to the accused to
explain the incriminating material against him. (State of Maharashtra v. Sukhdev Singh; AIR
1992 SC 2100) (Basavaraj R. Patil v. State of Collector; AIR 2000 SC 3214) (Sanatan
Naskar & Another v. State of West Bengal; AIR 2010 SC 3507).

Evidentiary Value:

As accused not examined on oath in 313 examination to explain his version or his
case against the evidence adduced by prosecution, the statements of him cannot be taken as a
evidence against him. Even it is right of accused to keep silence or to give any false statement
which does not bind him or the court not allowed to prosecute him on false statements given
by him in examination. The purpose, procedure and consequences of examination of accused
in 313 examination was discussed elaborately by our apex court in decision reported in AIR
2010 SC 3507 Sanatan Naskar & Anr vs State Of West Bengal.
COMPARISON OF STATEMENT UNDER SECTION 161 & 313 Cr.P.C.

1. Section 161 provides power to Police officer to examine whereas, section 313 of the
code provides power to the court to examine the accused.

2. Examination done by Police officer under section 161 of Cr.P.C is done at the initial
stage of the investigation whereas, Examination done by the court under section 313
of the code is done at the trial stage.

3. Under section 161 of the code ‘any person’ can be examined. Here, ‘any person’
includes witnesses along with the accused. Whereas, under section 313 of Cr.P.C.,
enable court to only examine the accused.

4. When questions are put during the examination under both sections 161 & 313
Cr.P.C, it is the right of the accused to keep silence if he do not want to answer any
question.

5. If false statement is provided in the statement recorded under section 161 of the code
with intent to cause public servant to use his lawful power to the injury of other
person, he shall be prosecuted under section 182 of IPC and be punished with
imprisonment upto 6 months, or fine of Rs. 1000 or both.

Whereas, if false information is provided in the statement recorded under section

313 of Cr.P.C, the accused shall not render himself liable to punishments.

6. Statement recorded by Investigating officer under section 161 of the code cannot be
used as substantive piece of evidence. As well as, in case of Mohan Singh v. Prem
Singh (2002) SC, It was held that the statement under section 313 of Cr.P.C is also
not a substantive piece of evidence.

7. In Gyan Chand v. State of Haryana (2013) SC, it was held that non-compliance of
Section 313 by court does not vitiate the entire proceeding and also the conviction
cannot be challenged on this basis.

Whereas, It was held in Mantram v. State of Madhya Pradesh (1997), where the
investigating officer had delebrately failed to record the F.I.R and prepared it after
reaching the spot after due deliberations, the investigation is tainted and it would be
unsafe to rely on such tainted investigations.
CONCLUSION

According to Sir John Woodburn, Lieutenant-Governor of Bengal , " the evil is

essentially in the investigating staff. It is dishonest and it is tyrannical ... ". According to
him, "The honest policeman rigs the evidence to convict the man he knows is guilty.
Perhaps it is the only way he can get a conviction. The dishonest policeman rigs the
evidence to convict a man he knows is innocent." That the process of investigation
characterizes the nature of policing to a great extent and constitutes as one of the most
important occasions for bringing the police and 'publics' into contact. The process is not an
indivisible whole, but involves many interactional stages assuming different forms of
contact appropriate to each. There prevails a serious crisis of confidence that afflicts public
opinion toward the police. It is apparent that ample powers are vested in the magistrate to
check arbitrary arrests. Police excesses & to facilitate a more incisive probe into the
discovery of truth, as various stages a fter investigation, and even after filing of then police
report.

The law mandates every incriminating evidence should be put to the

accused separately. Section 313 CrPC is based on the fundamental principle
of fairness. The attention of the accused must specifically be brought to
inculpatory pieces of evidence to give him an opportunity to offer an
explanation if he chooses to do so. Therefore, the court is under a legal
obligation to put the incriminating circumstances before the accused and
solicit his response. This provision is mandatory in nature and casts an
imperative duty on the court and confers a corresponding right on the
accused to have an opportunity to offer an explanation for such incriminatory
material appearing against him. Trial judge should take care that questions
of an inquisitorial nature should be put an accused, simply because
statements given by accused under this section is not sole base for
conviction, presiding officer cannot be treat as formality as it carries much
impotence in appreciation of evidence.

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