Attendance and Interrogation of witnesses (Section 160-163)

INTRODUCTION:

For effective investigation the police need to obtain information from persons acquainted with the facts and circumstances relevant to the commission of the offence.

 Police officer’ s power to require attendance of witnesses

1. Any police officer, making an investigation under this Chapter may, by order in writing, require the attendance before himself of any person being within the limits of his own or any adjoining station who, from the information given or otherwise, appears to be acquainted with the facts and circumstances of the case; and such person shall attend as so required:

Provided that no male person under the age of fifteen years or woman shall be required to attend at any place other than the place in which such male person or woman resides.

2. The State Government may, by rules made in this behalf, provide for the payment by the police officer of the reasonable expenses of every person, attending under sub- section (1) at any place other than his residence.

According to Sec. 160:

Any police officer making an investigation under this Chapter may, by order in writing, require the attendance before himself of any person being within the limits of his own or any adjoining station who (from the information given or otherwise) appears to be acquainted with the facts and circumstances of the case [sub-sec. (1)].

Under this Section an Investigating police Officer may by order require the attendance before himself of any person if following conditions are satisfied: –

1. The order must be in writing.
2. The person to whom the order is made is one who appears to be acquainted with the facts and circumstances of the case.
3. Such a person is within the limits of police station of the Investigating Officer or is within the limit of any adjoining police station.

There are some exception appended to this section :

Investigating officer cannot require the attendance o following person in the Police Station. Their attendance will be at their residence :

• Women of any age.
• A man below the age of 15 years.
• A man above the age of 65 years.
• A disabled person mentally or physically.

Person who fails to comply with the order of the police may be prosecuted for disobedience under section 174 of Indian Penal Code (IPC). The Investigating Officer (I.O.) of a case has no authority to use force for compelling attendance, nor does he have any power to arrest or detain such a person.

The intention of the Legislature appears to provide facility to the police to obtain evidence with regard to the crime being investigated. Disobedience of mere verbal order is not punishable. This section does not authorize a police officer to require the attendance of an accused person with a view to answering the charge.

Case Laws:

Narayan Swami vs Emperor AIR 1939 PC 47

The words ‘any persons’ include a person who may become the accused. However, Sec. 160 does not authorize a police officer to require the attendance of an accused person with a view to his answering the charge. The intention of the Legislature seems to have been only to provide a facility for obtaining evidence and not for procuring the attendance of the accused, who may be arrested at any time, if necessary, without a warrant.

SUBE SINGH vs. STATE OF HARYANA AIR 2006 :

The police repeatedly questioned the family members of the accused at their house or by calling them at the police station. This was done because the police had reasonable grounds to believe that the family members knew about the whereabouts of the accused. The Court said that this being part of the process of investigation, could not per se be considered as harassment or torture are violation of Article 21 of the Indian Constitution.

Examination of witness

Section 161 in The Code Of Criminal Procedure, 1973: Examination of witnesses by police.

1. Any police officer making an investigation under this Chapter, or any police officer not below such rank as the State Government may, by general or special order, prescribe in this behalf, acting on the requisition of such officer, may examine orally any person supposed to be acquainted with the facts and circumstances of the case.
2. Such person shall be bound to answer truly all questions relating to such case put to him by such officer, other than questions the answers to which would have a tendency to expose him to a criminal charge or to a penalty or forfeiture.
3. The police officer may reduce into writing any statement made to him in the course of an examination under this section; and if he does so, he shall make a separate and true record of the statement of each such person whose statement he records.

Provided that statement made under sub-section may also be recorded by audio-video electronic means.

Provided further that the statement women against whom an offence under section 326A, section 326B, section 354, section 354A, section 354B, section 354C, section 354D, section 376, section 376A, section 376B, section 376C, section 376D, section 376DA, section 376DB, section 376E, or section 509 of Indian Penal Code is alleged to have been committed or attempted, then such information shall be recorded, by a woman police officer or any woman officer.

Anatomy of the section 161 are as :

The Section is an enabling provision. Section 161 gives the power to the investigating police officer to examine orally any person supposed to be acquainted with facts and circumstances of case and such a person is required to answer truly all questions relating to the case put to him by such an officer.

If a person refuses to answer, he can be punished under Section 179 of Indian Penal Code. If he gives a false answer, he can be punished under Section 193 of Indian Penal Code.

The law now expressly requires a person to answer the question truly. He can refuse to answer incriminating questions. A person who gives a false answer to question under this section may be prosecuted under Section 179 of Indian Penal Code.

The words ‘any person’ would include accused person also [Syamo v Emperor AIR

1932 Mad 391].

Nandini Satpathy v P.L. Dani (1978) 2 SCC 424: The Supreme Court held that questioning a suspect is desirable for detection of crime and even for the protection of the accused person. Such a person, however, has been given protection both by Sec. 161(2) and Art. 20(3) of the Constitution against questions the answers to which would have a tendency to expose him to a criminal charge. Art. 20(3) says that no person accused of any offence shall be compelled to be a witness against himself. The area covered by Art. 20(3) and Sec. 161(2) is substantially the same and Sec. 161(2) is a parliamentary gloss on the constitutional clause.

The apex court held: “The accused person may remain silent or refuse to answer when confronted with incriminating questions.

If the police have sufficient evidence to arrest a person it should not proceed under this section. The accused person, even after his remand to judicial custody, can be questioned by the police with the Magistrate’s permission in any place and manner which do not amount to custody in the police.

Recording of Statements [Sec. 161(3)]

Tilkeshwar Singh v State of Bihar AIR 1956 SC 238:

The investigating officer may reduce into writing any statement made to him in the course of the examination of a person; and if he does so, he shall make a separate and true record of the statement of each such person whose statement he records [Sec. 161(3)]. If he records only one joint statement of several witnesses, that would not render their evidence as inadmissible but affect the weight to be attached to their evidence.

A police officer making an investigation is not bound to reduce into writing the statements of witnesses examined by him; but it is desirable that he records at least the substance of such statements. It would be open to him to satisfy the court that his failure in this respect was due to reasons beyond his control. A statement or record under Sec.

161 is generally called “case diary statement”.

B.Ramaiah v State AIR 1960 A.P. 160:

The statements should be recorded as far as possible in very words of the person examined and should not be in indirect (boiled) form of speech.

Noor Khan v State of Rajasthan AIR 1964 SC 286:

Where the statement of witnesses is recorded, the police are obliged to make copies of those statements available to the accused before the commencement of the proceedings.

Ram Jethmalani v Director, CBI, 1987 CrLJ 570 (Del):

The statements recorded by the police officer and the documents filed in support of them with the officers are public documents that can be obtained from them by the citizens.

It may be noted that Sec. 161(3) does not require a person making a statement to a police officer to sign it as that might lead to abuse of power by the police.  Sec. 162(1) lays down that “no statement made by any person to a police officer in the course of an investigation, shall, if reduced to writing be signed by the person making it.”

State of U.P. v M.K. Anthony AIR 1985 SC 48:

If an investigating officer has by mistake obtained the signature of the accused on the seizure memo in violation of Sec. 162(1), it shall not vitiate the whole proceedings State of Rajasthan v Teja Ram (1999) 3 SCC 507]. If the officer obtains the signature of a witness on his recorded statement, the evidence of the witness is not thereby rendered inadmissible. It merely puts the court on caution and may necessitate an in-depth scrutiny of such evidence.

Delay in recording 161 statements and its effects Delay in recording of statement of witnesses – Does not necessarily discredit their testimony, if they are cogent and credible and delay is explained to the satisfaction of Court.

The effect of delay in recording statements of witnesses under section 161 of the Code of Criminal Procedure was examined by the Hon’ble Supreme court in the case of Harbeer singh vs sheeshpal , where in honourable apex court observed that delay in recording of statements of the prosecution witnesses under Section 161 Cr.P.C., although those witnesses were or could be available for examination when the Investigating Officer visited the scene of occurrence or soon thereafter would cast a doubt about prosecution case. It is settled law that every delay in examining witness not fatal subject to explanation given by investigating officer to the satisfaction of court.

In case Ganesh Bhagvan Vs state of Maharastra 2005 DMC 445 the honourable court observed that though it is a well settled law that delay in recording the statement of the witnesses does not necessarily discredit their testimony, but if those witnesses were or could be available for examination when the Investigating Officer visited the scene of occurrence or soon thereafter, and even then, the delay has occurred, it would cast a doubt upon the prosecution’s case.

            In the process of investigation, under Section 161 of Cr.P.C, any Police officer making an investigation is accredited and empowered to examine orally any person supposed to be acquainted with the facts and circumstances of the case and to records statement of witnesses. These statements are predominantly called 5 as section 161 Cr.P.C statements. This task is to gather evidence against accused. After filing charge sheet, these statements will also be perused by the Court to take cognizance of an offence. Such a statement can only be utilized for contradicting the witness in the manner provided by Section 145 of the Evidence.

SECTION 162: Statements to police not to be signed:

1. No statement made by any person to a police officer in the course of an investigation under this Chapter, shall, if reduced to writing, be signed by the person making it; nor shall any such statements or any record thereof, whether in a police diary or otherwise, or any part of such statement or record, be used for any purpose, save as hereinafter provided, at any inquiry or trial in respect of any offence under investigation at the time when such statement was made
   Provided that when any witness is called for the prosecution in such inquiry or trial whose statement has been reduced into writing as aforesaid, any part of his statement, if duly proved, may be used by the accused, and with the permission of the Court, by the prosecution, to contradict such witness in the manner provided by section 145 of the Indian Evidence Act, 1872; and when any part of such statement is so used, any part thereof may also be used in the re-examination of such witness, but for the purpose only of explaining any matter referred to in his cross-examination.

2. Nothing in this section shall be deemed to apply to any statement falling within the provisions of clause (1) of section 32 of the Indian Evidence Act, 1872, or to affect the provisions of section 27 of that Act.

Explanation – An omission to state a fact or circumstance in the statement referred to in sub-section (1) may amount to contradiction if the same appears to be significant and otherwise relevant having regard to the context in which such omission occurs and whether any omission amounts to a contradiction in the particular context shall be a question of fact.

A statement recorded by police officer during investigation is neither given on oath nor is it tested by cross-examination. According to the law of evidence such statement is not evidence of the facts stated therein and therefore it is not considered as substantive evidence.50 51 And it is considered no evidence to initiate criminal cases under Sections 194 and 195 IPCA But if the person making the statement is called as a witness at the time of trial, his former statement, according to the normal rules of evidence could be used for corroborating his testimony in court or for showing how his former statement was inconsistent with his deposition in court with a view to discredit him. However, the normal rules of evidence have been substantially modified by Section 162 as aforementioned.

Section 162 (1) and its proviso provided that :-

If such a statement (statement before police officer) has been reduced into writing, its use is prohibited unless

1. A statement made to the police during the course of the investigation of an offence, can be used in trial if the person making the statement Is called as a prosecution witness;
2. The statement can be used for the purpose of contradicting such witness in the manner provided by Section 145, Evidence Act;
3. The statement can be used for the above purpose a) by the defence, or b) with the permission of the court by the prosecution (This might be desirable if a prosecution witness is won over by the other side);
4. if any part of the statement is used for contradiction, any part of the statement can be used in the re-examination of the witness for the only purpose of explaining any matter referred to in his cross-examination

In general, a statement made to the police by way of F.I.R. or recorded during police investigation) cannot be considered as substantive evidence i.e. as evidence of facts stated therein unless it falls under the category of 162 (1) ,Because it is not made during trial, it is not given on oath, nor is it tested by cross-examination.

Further under section 162 (2) it is provided that provision of 162 (1) is not applicable in following two circumstances :-

1. Section 32(1) – dying declaration
2. Section 27 of Indian Evidence Act – discovery statements

Hence in aforementioned circumstances, If such a statement (statement before police officer) has been reduced into writing, its use is not prohibited even if it doesn’t fulfil the conditions mentioned in proviso of 162(1).

In addition to above, this section shall not apply in following :

• If the statement is not given to the Police officer, then that statement is outside the purview of Section 162.
• Even if the investigation is prior or after then also it will not be under this section.
• This section does not apply in maintenance of wife and children under Section 125. It is of quasi civil nature.
• This Section does not bar a Judge to use the statement when they are questioned under Section 165 of Indian Evidence Act.
• Tape recorded statement is admissible as it is an electronic statement as well.
• If the signatures are done the security will increase on the part of the judiciary and will not affect the prosecution.
• Any statement recorded by police officer under Section 174 during enquiry Section 162 will not apply.
• This Section does not come into play if the cognizance has been taken under Section 190(1) (a). This Section applies on both cognizable and non-cognizable offence as both comes under Chapter XII.
• If a person is called as a Court witness under Section 311 of the Code, he is neither a prosecution witness nor a defence witness. Can his former statement before the police be used by the Councillor for the purpose of contradicting him?

CASE LAWS :

KHATRI  vs. STATE OF BIHAR AIR 1981 : The bar created by Section 162, has no application for example in a civil proceeding or in a proceeding under Article 32 or 226 of the Constitution, a proceeding under Section 452 of the Code for disposal of the property, and a statement made before a police officer in the course of investigation can be used as evidence in such a proceeding, provided it is otherwise relevant under the Evidence Act.

TEHSILDAR SINGH vs. STATE OF U.P. AIR 1959 :

A statement not only includes what is expressly stated therein but also what is necessarily implied therein. It applies on statement as well as on implication.

R.M. MALKHANI vs. STATE OF MAHARASTRA AIR 1973:

A tape-recorded statement has been held to be outside the purview of Section 162. Where a person talking on the telephone allows a police officer to record it on tape or to hear it and the court permits the tape recording to be played over, it was held that such conservation was not within the vice of Section 162.

YUSUFALLI vs. STATE OF MAHARASTRA AIR 1968 :

When the police set the stage for the drama and hid themselves and took no part in it, neither the complainant nor the accused could be regarded as having made a statement to a police officer.

SAT KUMAR vs. STATE OF HARYANA AIR 1974:

Where the police officer, after registering a case obtaining the FIR, proceeded to the spot in the course of investigation, any statement recorded by him there will be hit by this Section.

Section 163. No inducement to be offered:

1. No police officer or other person in authority shall offer or make, or cause to be offered or made, any such inducement, threat or promise as is mentioned in section 24 of the Indian Evidence Act, 1872 (1 of 1872).
2. But no police officer or other person shall prevent, by any caution or otherwise, any person from making in the course of any investigation under this Chapter any statement which he may be disposed to make of his own free will:

Provided that nothing in this sub-section shall affect the provisions of sub-section (4) of section 164.

Sec. 163 prohibits a police officer or a person in authority from offering or making any inducement, threat or promise as is mentioned in Sec. 24 of the Evidence Act [sub-sec. (1)].

But he shall not prevent, by any caution or otherwise, any person from making any statement (in the course of any investigation under this Chapter) which he may be disposed to make of his own free will [sub-sec. (2)].

A caution, however, is necessary and imperative in cases falling under Sec. 164(4) of the Code [Proviso to Sec. 163(2)].

Sirajuddin v State, 1971 CrLJ 523 (SC): Section 163 ensures that the statements made to the police during investigation are not affected by fear or favour. It lays down an embargo on the investigating authorities to use any inducement, threat or promise which might influence the mind of the maker of the statement and lead him to suppose that thereby he would gain any advantage or avoid any evil in reference to his conduct as disclosed in the proceedings.

Santokhi Beldar v Emperor AIR 1933 Pat 149: A ‘person in authority’ is generally one who is engaged in the apprehension, detention, or the prosecution of the accused or one who is empowered to examine him.

The following have been held to be cases of inducements and threats:

• “I will get you released, if you speak the truth”
• “You had better pay the money than go to jail, and would be better for you to tell the truth.
• “If you confess the truth, nothing will happen to you”. (iv) “If you speak the truth, we will speak to the constable and arrange”
• “Tell me what you know about it; if you will not, I can do nothing for you and I will send for the constable”.

On the other hand, the following have been held to be only “words of caution” and therefore not amounting to inducements or threats:

• “I know the whole thing”.
• “Take care, we know more than what you think we know’.
• I Exhortation to speak the truth.

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