Section-161 of the Crpc deals with the examination of witnesses by the police, and this provision allows the police or gives them authority to interrogate the witnesses whenever they need to record the statements of the witnesses. The major goal of this Section is to present the evidence before the court throughout the trial. This information is also valuable to the court in formulating charges against the perpetrator.
Examination of witnesses by police (statutory provision)
(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 on 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.
The goal of Section 161 is to acquire evidence that can subsequently be used in court. In the event of a trial before a court of the session or a warrant-case trial, a charge may be filed against the accused based on the statement recorded by the police under Section 161. This Section gives the police the authority to question witnesses during an investigation.
Section 161(1) allows for oral examination of anybody who is supposed to be familiar with the facts and circumstances of the case. A police officer examines the person in this segment. Section 161 (1) uses the phrase ‘any person’ to encompass a person who may be accused of the offence as well as suspected. In the case of Pakala Narayan Swami v. Emperor (1939), it was determined that the term ‘persons’ encompassed any person who may be accused subsequently.
Section 161(2) binds a person who is interrogated by police during an inquiry to answer all questions honestly, but it also shields the person from answering questions that would subsequently lead to the person’s incrimination. It was held in the case of Nandidni Satpathy v. P. L. Dani (1978) that we cannot force or compel a person accused of an infraction to submit or make a statement that is against himself. The individual is free to keep silent. However, it is critical to safeguard such a person since a person is presumed innocent unless proven guilty.
This subsection provides a shield against self-incrimination, which is recognized as a fundamental right under Article 20(3) of the Indian Constitution. According to the aforementioned Article, no person accused of a crime can be forced to testify against himself. When presented with damning questions, the accused may remain silent or refuse to answer.
Section 161(3) requires that witness testimony under Section 161 be recorded in the first person and not in an indirect form of speech. An oath or affirmation is not needed during a witness examination under this Section. It also forbids the preparation of a synopsis of a statement recorded and provides that the statements made under this subsection may be captured using audio-video technological methods. Apart from this, the statement given by a woman must be documented by a woman police officer or any female officer.
In Sewaki v. State of Himachal Pradesh (1981), it was determined that statements made by investigating officers under Section 161 are neither recorded under oath nor are they subject to cross-examination as required by Section 145 of the Evidence Act, 1872. As a result, according to the law of evidence, these statements are not substantive pieces of evidence because they do not provide proof of the facts stated in them.
Evidentiary Value:
The statements recorded by the police u/s.161 CrPC is not evidence for prosecution. They can be used by the defense to contradict the prosecution witnesses. 8 But when the prosecution witness turns hostile, with the permission of a court, the Public Prosecutor can cross-examine that witness by using his 161 statements to establish contradiction. When 161 statements fall u/s.27 or u/s.32(1) of Indian Evidence Act, then those statements can be used by the prosecution as evidence. S.161 statements are not substantive evidence.9 Statement of an injured witness was recorded as dying declaration but he survived, then such statement has to be considered as S.161 statements.10 But 161 statements can be treated as a dying declaration if that person dies.11 S.161 statements can not be used against the accused in criminal cases.12 But there is no bar to use those statements in civil cases.13 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.14 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.15 If a thumb impression or signature is obtained, such statements are unreliable.16 Signing of the statement merely puts the Court on caution and may necessitate in-depth scrutiny of the evidence, but the evidence on this account cannot be rejected outright.17 Delay examination of witnesses by police u/s.161 CrPC, if properly explained, is not fatal to the prosecution case
Amendments to Section 161 CrPC-
The major changes following the amendments are as follows:
The Criminal Procedure (Amendment) Act, of 2008, went into force on December 31, 2009. This Amendment included a proviso in Section 161(3) which stipulates that the ‘statement shall be recorded by audio-video electronic means’.
The Criminal Law (Amendment) Act, 2013, which took effect on February 3, 2013, was added in Section 161(3) that in a certain category of crimes against women or children under the Indian Penal Code, such as Section 354, Section 376, and so on, a statement must be recorded by a lady police officer or lady officer.
Conclusion
Though there are certain flaws in the recording of the Investigating Officer’s remarks, it nonetheless plays an important part in the commencement of court proceedings. The fundamental goal of Section 161 of the Criminal Procedure Code is to safeguard the accused from both overzealous police personnel and untrustworthy witnesses. So there should be stronger regulation and supervision authorities that would monitor the police during the examination of witnesses. This will almost certainly lead to a better means of scrutinizing witnesses without police violence and rudeness, and this step will very certainly lead to voluntary witnessing in the near future.