Examination of witness by police

Sec.161: Examination of witness by Police.-

1) Any P.O making an investigation may examine orally any person

acquainted with the facts of the case

2) Such person is bound to answer truly all questions

3) The P.O may reduce into writing any statement made to him

→the statements may also be recorded by audio-video

electronic means
→the statements of the victims u/s 354, 376 or 509 of IPC are
required to be recorded by a woman P.O
→ the words “any person” includes accused of the crime
also.

⸫ he need not answer to the questions which would have a

tendency to expose him to a criminal charge or to a penalty
[Sec.161 (2) and Art. 20 (3)]

In Nandini Satpathy v. P.L Dani (1978) S.C held that

“the area covered by Art.20 (3) and Sec. 161 (2) is substantially
the same and Sec. 161 (2) is Parliamentary gloss on the
Constitutional Clause”
Held that “accused is bound to answer every question, except for
those which tends to self incrimination”
 Right to silence

In USA this right was recognised in Miranda v. Arizona

(1966) (5th amendment to USA Constitution - 1791)

→Miranda Rights and Miranda Warning

→in USA Right to Silence is complete right

→reason is I.O should not be allowed to rely upon the

confession of accused.
→strictly speaking Art.20 (3) does not recognise Right to
Silent. There is no complete right to silence in India

In Deepak Jagdeeshchandra Patel v. State of Gujarat (2017)

S.C held that “accused is bound to cooperate police”

⸫the accused may remain silent or may refuse to answer

when confronted with incriminating questions
Compelled testimony has been considered as
evidence procured not merely by physical threats
or violence but by psychic torture, atmospheric
pressure, coercion etc.

→the I.O must tell the accused about his right to

silence against self incrimination
 Evidentiary value of the statements made to
the P.O during the investigation
Statements recorded by police during investigation are not
given on oath

⸫they are not substantive evidence

Sec.162 (1): Statements made to police not to be signed:

→no statement made by any person to a P.O in the course

of an investigation shall be signed by the person
making it
→ nor shall be used for any purpose, save as provided
Sec. 162(1):Use of statements in evidence:

→Provided when any witness is called for the prosecution, any

part of his statement, if duly proved, may be used by the
accused to contradict such witness as provided
u/s 145 of I.E. Act

→with the permission of the court, prosecution can also

use to contradict such witness
(i.e. when prosecution witness turns hostile)
(2): Nothing in this section shall be deemed to apply to
any statement falling within the provisions of Sec. 32 (1)
or Sec. 27 of I.E. Act

Explanation: An omission to state a fact or circumstance in

the statement may amount to contradiction if same
appears to be significant and otherwise relevant

→whether any omission amounts to a contradiction in the

particular context shall be a question of fact
→as per Sec. 162 ‘no statement u/s 161 should be signed’.
But u/s 161 (3) such statements may also be recorded by
audio-video electronic means.

→this is moving from Adversarial System to Inquisitorial

System
→Sec.162 is a “Special Rule of Evidence”, which is not
found in the normal rules of Evidence Act
(Very Important)

→Every statement can be used for both Corroboration and

Contradiction, this is normal rule. But exception is
Sec.161, according to Sec. 162
Sec. 162 prohibits the use of the statements made to the police
during the course of investigation for the purpose of
corroboration (= substantiation, confirmation)

→⸫a statement made by the accused to the police is totally

inadmissible in evidence at any inquiry or trial in
respect of any offence under investigation at the time
when such statement was made

→which means can be used in other proceedings or in

respect of other offence
Ex.-I: a letter was written by the accused to the police
complaining about the act of an officer. Who was
ultimately murdered by the accused. Such statement is
admissible in evidence as admission to the motive

Ex.-II: can be used in civil proceedings

Sec. 162 is enacted for the protection of accused

1. A witness statement can be used for Contradiction

Then what is contradiction???

“When two statements are polar opposite, they are said to

be contradictory statements”
(diametrically or completely opposite)

Ex: Sec.161 Statement: “there was water”

Court statement: “there was no water”
 2. Sec. 162 provision speaks about “omission”

Ex.1: Sec. 161 statement says: ‘A’ stabbed ‘C’

Court statement: ‘A’ and ‘B’ stabbed ‘C’

→in 161 statement there was omission about ‘B’

→whether it amounts to contradiction is a question fact

→if court implies that in 161 statement witness said ‘A’

only stabbed, then it is contradiction (fatal to prosecution)

→if court does not imply ‘A’ only, then it is only omission
Ex.2: Sec. 161 statement says: ‘A’ only stabbed ‘C’
Court statement: ‘A’ and ‘B’ stabbed ‘C’

→it is clear contradiction

Ex.3: Sec. 161 statement says: Dark coloured man stabbed ‘X’
Court statement: Fair coloured man stabbed ‘X’

→here court can imply that the witness said in 161 statement “it is
dark person but, not a fair coloured person stabbed ‘X’.

→⸫ it is contradiction (fatal to prosecution)

Ex.4: Sec. 161 statement says: ‘A’ after stabbing ran
towards north
Court statement: ‘A’ after stabbing ran
towards south

→it is clear contradiction

Thashildar singh v. State of U.P (1959) S.C

(Explanation to the Sec. 162 is added due to the judgment of this case)
Exercise: Sec. 161 statement says: he saw, when he came
out of his home, the
victim was bleeding

Court statement: he saw accused stabbing

the victim

→what is it?? whether omission or contradiction

 3. Statements falling u/s 32 of I.E. Act

→this is Exception-I to the rule laid down in Sec.162

Sec. 32 (1): when the statement is made by a person as to

the cause of his death relevant

→This statement is called as ‘dying declaration’

 4. Statements falling u/s 27 of I.E. Act

→this is Exception-II to the rule laid down in Sec.162

Sec. 27: how much of information received from the

accused may be proved.-
Provided when any fact is (deposed to as) discovered
in consequence of information received from accused,
in the custody of P.O,
so much of such information,
whether it amounts a confession or not may be proved

(“Place” from where object, weapon or any physical thing is

recovered is “Fact Discovered”, but not such weapon)
Sec. 24 of I.E. Act.- Confession caused by inducement,
threat or promise – irrelevant and they are inadmissible

Sec. 25 of I.E. Act.- Confession to P.O not to be proved

Sec. 26 of I.E. Act.- Confession by accused while in

custody of P.O not to be proved against him

⸫sec. 27 is a provision to sec. 25 & 26

Ex. “I will show you where knife is kept/hidden” →this is
information and admissible

But if he further says “with which I stabbed ‘X’ →this part

amounts to confession and not admissible

⸫u/s 27 of I.E. Act “the relevancy of fact/object

discovered is to be proved by another proper/relevant
evidence

Ex. Finger prints, blood stains on knife

Ex. “I have hidden 1 kg. ganja in my house” →this is
information and as well as confession and
though it is confession it is admissible

Why??
Because possession of ganja it self is an offence

⸫no need to prove the offence by another

proper/relevant evidence
Pulukuri Kottaya v. Emperor (1947 – Privy Council)

It was held that:

1. object produced
2. place where object has been discovered
3. excusive knowledge of accused regarding that place
→these three things together means “fact discovered”
Illustration A
The accused, while in the custody of a police officer says –
“I have hidden the dagger beneath the tiles of the cowshed of my neighbour
Antony. I can show you the dagger so hidden.” Thereafter, the police officer, on
the strength of the above information given by the accused goes to the cowshed of
Antony, the neighbour of the accused and takes out the dagger hidden beneath the
tiles of the cowshed.

Illustration B
The accused, while in the custody of a police officer says – “I have hidden the
dagger in a secret place. If I am taken there, I shall show you the place and the
dagger hidden there.” Thereafter, the accused leads the police party to the
cowshed of his neighbour Antony and takes out the dagger hidden beneath the
tiles of the cowshed.
(See the difference between two illustraions)
State (NCT of Delhi) v. Navjot Sandhu (2005) S.C
(Parliament attack case)

held that “formal arrest of accused is not necessary. It is

enough that he is in police custody”

→see above judgment for understanding Ss. 10, 24, 25

and 27 of I.E. Act and also for joint discovery.

→in both cases it was held that Sec. 27 of I.E. Act is

Constitutionally valid
In Praveen Kumar v. State of Karnataka (2003) S.C

held that “neither I.E. Act nor Cr.P.C require that there
should be independent witness during the recovery. Not
required for panchanama”
Ex. If accused himself with cutted head of his wife goes to
the P.S and says that “I have killed my wife, this is her
head and the body of her and the knife is concealed at
a place X”

→actually at that time:

1. he is not accused
2. still he is not in the custody of police

In State of U.P v. Devman Upadhyaya (1960) S.C held that

“these two points will attract at later point”
In Mehaboob Ali & Anr. v. State of Rajasthan (2015) S.C
held that
“Name and identity of co-accused persons given by
accused, in confession statement who were not known to
the police till that time is clearly admissible and saved by
the 27 of I.E. Act”

→this case is about fake currency chain

So Sec. 162 (2) is exception
for clause (1) of Sec. 162
Food For
Thought
Art.20 (3): No person accused of an offence……...

→Person should stand in character of accused

→unless there is a formal accusation/FIR

Art.20 (3) protection will not be available
→apart from police officers, Customs officers,
officers of FEMA, DRI officers, officers u/NDPS
Act etc., have powers of arrest, search, seizure.

→they have invested with almost all powers of

police officers

→when Customs officers issue arrest memo for search

etc., they won’t file FIR u/s 154 of Cr.P.C

→interesting point is: what about investigation

/prosecution conducted by these officers??
→Customs officers can arrest and record statements
of the accused for the purpose of Departmental
Adjudication.

→such statements can be confession statements

→they have two choices.

1)may adjudicate and impose fine or recover tax
2) May also choose to prosecute
→when they choose to prosecute, they file a
complaint before the court

→⸫ all these officers will not file ‘Final

Report’ /‘Charge-sheet’ before court. But file
‘Complaint’
In Rameshchandra Mehata v. State of W.B (1970) S.C
held that “the Customs officers are concerned with the
assessment of the tax liability. The statements
recorded u/Customs Act are admissible in evidence
because the person here does not fulfill the character
of accused”

→the court took the view that Customs officer is filing

a Complaint before the court, ⸫ he is not a P.O
→S.C took view that u/Customs Act person is
arrested to inquire and search, but without an
intention of prosecution, hence
statements recorded by Customs officer are
admissible and based on which accused can
be convicted

→here powers are same, but mere change of names

But in Noor Aga v. State of Punjab (2009) S.C held
that “for officers u/NDPS Act, who are vested with
powers of officers of police station, Art.20 (3) is
applicable and confession statements recorded by
such officers are inadmissible in evidence”

→it is welcoming judgment

See Tofan Singh v. State of Tamil Nadu
(Oct, 2020) S.C

→for detailed discussion on all above discussed

issues