Crpc sec 161

lecture 9

1. CRIMINAL PROCEDURAL CODE, 1973 CHAPTER XII SECTION 161: Examination of witness by police BY ARUNDHATI BANERJEE MLC My Law Corner

2. BARE ACT LANGUAGE EXPLAINED (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 . CHOICE AWARE FLOW CHART FOR EASY EXPLANATION MLC My Law Corner POLICE OFFICER CALL THE WITNESS EXAMINE CASE DIARY STATEMENT ORAL QUESTION/ANSWER

3. SECTION 161 CONTINUED… (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. IN EASY WORDS MLC My Law Corner 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 word ‘truly’ has been added in the new Code and did not appear in the old one. The law now expressly requires a person to answer the question truly. He can refuse to answer. 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.

4. SECTION 161 CONTINUED… (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 : CHOICE MLC My Law Corner FLOW CHART FOR EASY EXPLANATION POLICE OFFICER CHOICE REDUCE IN WRITING SEPARATE RECORD STATEMENT EACH PERSON

5. SECTION 161 CONTINUED… 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. MLC My Law Corner IN EASY WORDS If any offences against a women has been committed under Indian Penal Code then that offence information shall be recorded by a women police officer or any women officer.

6. MLC My Law Corner POINTS TO REMEMBER 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. However, the person giving any oral testimony may not answer any question which might have a tendency to expose him to a criminal charge or to a penalty or forfeiture. The police officer may reduce into writing any statement made a separate and true record of the statement of each such person whose statement he records. This Section does not authorize beating or confining a person with a view to induce him to make a statement. Recording a statement is not obligatory. The police should not extract information by using force. The object of Section 161 is to obtain evidence which may later be produced at the trial. It enables the police to examine the witnesses during investigation.

7. POINTS TO REMEMBER CONTINUED… Gist of the statement are not in under Section 161. G enerally it is in question answer form. Even if the information is in paragraph or narrative form it will not disregard the statement by the court or in other words it is not the material defect. It is essential that the statement should be recorded while the person was under examination and therefore if the witnesses himself writes the statement over to the police officer it would not fall under this section. Statements under this section are known as police statement or case diary statement. Evidentiary value of the statements: Statements recorded by investigating officer under this section cannot be used as substantive evidence before the court. A police officer making an investigation is not bound to reduce into writing the statement of witnesses examined by him, but it is desirable that he records at least the substance of such statement. It would be open to him to satisfy the court that his failure in this respect was due to reasons beyond his control. MLC My Law Corner

8. CASES RELATED TO THIS SECTION NANDANI SATPATHY vs. P.L. DANI AIR 1978 The Supreme Court held that both the provisions of Section 161 (2) of Cr.P.C and Article 20 (3) of the Constitution substantially cover the same area, so far as police investigation are concerned. The legal perils following upon refused to answer, or answer truthfully, cannot be regarded as compulsion within the meaning of Article 20 (3). NOOR KHAN vs. STATE OF RAJASTHAN AIR 1964 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 vs. DIRECTOR The statements recorded by the police officer and the documents filed in support of them with the officers are public document that can be obtained from them by the citizens. NARAYAN CHETANRAM CHOUDHARY vs. STATE OF MAHARASTRA AIR 2000 The substance of interrogation recorded by the investigating officer cannot be regarded as a statement of the witness recorded under Section 161. it cannot be used for contradicting the witness at the trial under Section 162. MLC My Law Corner

9. CASES CONTINUED… ALAMGIR vs. STATE OF DELHI AIR 2003 Where a relevant fact was not mentioned in the statement of the witness under Section 161 but was deposed before the court in his testimony, the court said that this would not be a ground for rejecting his evidence if it is otherwise creditworthy and acceptable. An omission on the part of a police officer cannot take away the nature and character of the evidence. GURPREET SINGH vs. STATE OF BIHAR AIR 2002 It is now well settled that in the event of a portion of evidence not being consistent with the statement given under Section 161 and the witness stands declared hostile that does not, however mean and imply total rejection of the evidence. The person which stands in favor of the prosecution or the accused may be accepted but the same shall be subjected to close scrutiny. UDAY CHAKRABORTY vs. STATE OF WEST BENGAL AIR 2010 The investigating officer who took over the investigation would record fresh statements of the witness. It was not tenable to say that he ought to have relied upon the statement recorded by the earlier investigating officer. MLC My Law Corner

10. MLC My Law Corner DISTINCTION BETWEEN SECTION 161(2) OF CRIMINAL PROCEDURAL CODE AND SECTION 132 OF INDIAN EVIDENCE ACT Under Section 161(2) the person cannot be compelled to answer self-incriminating questions, whereas under Section 132 he can be compelled to answer. Section 161(2) is related to the stage of investigation whereas Section 132 is related to inquiry or trial. Statements under Section 161(2) is not on oath whereas under Section 132 the statement is on oath. Therefore, for a false statement under Section 161(2) there will not be a liability for perjury, whereas for a false statement under Section 132 the person will be liable for perjury. Section 161(2) is directly in line with Article 20(3). Section 132 is not related to Article 20(3) In Section 161(2) it can be the statement of the witnesses, victim as well as the accused. But under Section 132 it has to be the statement only of the witnesses including the victim.

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