This article has been written by Ms.Haya Khan, a student studying in B.A,LL.B. from Amity University,Kolkata.The author is a 2nd year Law student.
INTRODUCTION
The police examination of witnesses under the requirements of the Code of Criminal Procedure, 1973 (CrPC) is a crucial stage in the resolution of cases and the punishment of perpetrators. The police take the person’s statement during a witness questioning in order to proceed with the investigation under the rules of the Criminal Procedure Code, 1973. The word ‘statement’, on the other hand, is not defined under the CrPC.Section 161 of the CrPC deals with police interrogation of witnesses, and this clause authorises or grants the police permission to examine witnesses anytime they need to record their testimonies. This Section’s main aim is to provide the evidence to the court throughout the trial. This information is also useful to the court in determining how to charge the perpetrator.
Before we get into the specifics of a witness’s examination, let’s define the term “witness.” A witness is someone who witnesses an incident, usually a crime or an accident, or who testifies under oath in a court trial. The name ‘witness’ itself discloses the meaning: any individual who witnessed the crime and has firsthand knowledge of any occurrence in a criminal case, which supports the lawyer in testifying the evidence and the courts in giving judgements. During a criminal trial, the witness is typically summoned to appear in court and present her statement.
STATEMENTS RECORDED UNDER SECTION 161 CRPC
During an investigation, the officer conducting the inquiry should always examine the subject and record his or her statement. However, in circumstances where this is impractical, the Head Constable or the writer attached to the Police Station may record witness accounts. In that instance, both the recording officer and the investigating officer must sign the statement recorded in accordance with Section 161 (3) of the Cr.P.C. In an examination, administering an oath or affirmation is not required under this clause.
The phrase ‘any individual’ encompasses the accused as well.1 As a result, those to be examined include anyone who may later be accused of the offence under investigation by the police officer. The individual being questioned in the course of a police inquiry is required to answer all questions “except those that have a tendency to expose him to a criminal charge, a penalty, or forfeiture.” The individual being questioned is legally obligated to tell the truth.However, the accused has the right to keep quiet since he has the ‘right against self-incrimination’ under Section 161(2) of the Criminal Procedure Code and Article 20(3) of the Indian Constitution.
However, if a police witness fails to answer inquiries, he may be penalised under Section 179 of the Indian Penal Code, or if he provides false information, the accused shall be punished under Section 193 of the Indian Penal Code. Despite the fact that S.161(2) CrPC throws a wide net to protect formally accused people, suspects, and witnesses during the investigative stage, S.132 of the Evidence Act puts restrictions on the immunity of to witnesses during the trial stage. All witnesses who are familiar with the facts and circumstances of the case and who may be called as witnesses in court should have their statements put to paper. Each witness’ statement should be recorded separately. Police officers are not permitted to use the indirect form of speech in statements they make as required by Criminal Procedure Code section 161(3). The language of S.162 Cr.P.C. and S.145 of the Evidence Act plainly suggests that the writing should be describable as a statement of the witness himself and should be as close to a complete record.
S.161(3) Cr.P.C. read in conjunction with S.173(3) Cr.P.C. plainly states that separate statements of all persons whom the prosecution intends to examine as witnesses must be recorded and copies provided to the accused prior to the start of the inquiry. It should also be noted that, in accordance with Section 207 of the Criminal Procedure Code, police reports and other papers are provided to the accused. These provisions must be strictly followed.Witness statements recorded in the case diary are protected by S.161 and 162, Cr.P.C., and the privilege accorded to the case diary does not extend to witness statements recorded therein. Only the gist of the witness testimony recorded under Section 161 (3) Cr.P.C. must be mentioned in the case diary. Form 16-A should be used to record case diaries.
EXAMINATION OF WITNESS UNDER THIS SECTION
The purpose of Section 161 is to gather evidence that can later be utilised in court. In the event of a trial before a session court or a warrant-case trial, a charge may be filed against the accused based on the police statement recorded under Section 161. This Section empowers the police to interrogate witnesses during an inquiry.Section 161(1) permits for oral examination of anyone who is supposed to be familiar with the case’s facts and circumstances. In this phase, a police officer examines the individual. Section 161 (1) utilises the phrase ‘any person’ to include both those who are accused and those who are suspected of committing the offence. In the case of Pakala Narayan Swami v. Emperor (1939), it was decided that the phrase ‘persons’ included any later accuser.Section 161(2) requires a person who is interrogated by police during an investigation to answer all questions honestly, but it also protects the person from answering questions that would lead to the person’s incrimination. In the case of Nandidni Satpathy v. P. L. Dani (1978), it was determined that we cannot force or compel a person accused of an offence to submit or give a statement against oneself. The individual has the option of remaining silent. However, it is vital to protect such a person because everyone is believed innocent unless proven guilty.
This clause protects against self-incrimination, which is regarded as a basic right under Indian Constitution Article 20(3). No one accused of a crime can be forced to testify against oneself, according to the aforementioned Article. When confronted with incriminating questions, the accused may choose to remain silent or refuse to answer.Section 161(3) requires witness evidence to be recorded in the first person and not in an indirect style of speech. During a witness examination under this Section, no oath or affirmation is required. It also prohibits the creation of a synopsis of a recorded statement and specifies that statements made under this article may be recorded using audio-video technical methods. A woman’s statement must also be documented by a female police officer or any female officer.
It was established in Sewaki v. State of Himachal Pradesh (1981) that comments made by investigating officers under Section 161 are neither recorded under oath nor susceptible to cross-examination as required by Section 145 of the Evidence Act, 1872. As a result, these comments are not substantive pieces of evidence under the law of evidence because they do not give proof of the facts claimed in them.
REFERENCES
- Panner Selvam vs State Rep. By Inspector Of Police, Crl.R.C (MD).No.259 of 2010
- Selvi & Ors. vs. State of Karnataka (2010) 7 SCC 263
- 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
- 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.).
- 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.
- Nandidni Satpathy v. P. L. Dani (1978)
- Pakala Narayan Swami v. Emperor (1939)
- Sewaki v. State of Himachal Pradesh (1981)
- https://verticallegal.com/blogs/guidelines-with-respect-to-statement-of-witness-and-accused-under-section-164-of-code-of-criminal-procedure/
- https://www.livelaw.in/news-updates/161-statement-inadmissible-in-evidence-153388