Section 161 provides that a police officer making an investigation or any police officer not below such rank as the State Government may prescribe may examine any person orally acquainted with the facts and circumstances of the case, and such person shall be bound to answer all questions relating to such case except questions the answers to which would tend to expose him to a criminal charge or to a penalty or forfeiture.
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 person whose statement he records:
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Provided that statement made under this sub-section may also be recorded by audio-video electronic means.
Section 162 indicates the use to which such statement may be made in evidence. It lays down the following proposition of law:
(i) “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.” Statements of witnesses taken in the course of police investigation must not, therefore, be signed and even if they are signed contrary to the express provisions of Section 162, they do not amount to a statement or become admissible as first information.
(ii) The section further lays down that any such statement by a person to a police officer in the course of an investigation or any record thereof, whether in a police diary or otherwise, or any part of such statement or record, shall not 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.
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It follows therefore that a witness cannot be asked at the trial as to what he said to the police during the investigation nor may any police officer be asked what a witness said to him during such investigation.
(iii) The section proceeds by adding a proviso to the above proposition by stating that “when any witness is called for the prosecution in such inquiry or trial whose statement has been reduced into writing in the course of a police inquiry 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 witnesses in the manner provided by Section 145 of the Indian Evidence Act, 1872 (1 of 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.”
It, therefore, appears that a statement made by a witness to the police officer can be used by the accused only to contradict the witness: it cannot be used only by the prosecution save, with the permission of the court to contradict such witness.
It is illegal for a Magistrate to use as evidence against the accused the statements made by prosecution witnesses before the police by comparing them with their depositions, and as a result of that comparison to convict him. In short, statements made to the police during investigation are not admissible as evidence save in the manner stated above.
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The mode in which the previous statement can be used is by contradicting the witness by such writing and this can be done only by drawing attention to such parts of the recorded statement (when duly proved) or are intended to be used for the purpose of contradiction and allowing the witness an opportunity to explain any contradiction.
(iv) The section further proceeds by providing that 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. [S. 162 (2)].
Section 32 (1) of the Indian Evidence Act relates to statement of relevant facts as to the cause of his death made by a person who is dead, or who cannot be found or who has become incapable of giving evidence; or whose attendance cannot be procured without an unreasonable amount of delay or expense. Section 27 of the Indian Evidence Act deals with information received from an accused in the custody of a police officer and provides that so much of the information as relates distinctly to the fact thereby discovered may be proved. The net result is that a statement falling either under Section 32(1) or Section 27 of the Indian Evidence Act may be proved against the person making it. In such circumstances a dying declaration made to a police officer during the course of investigation is admissible in evidence if it satisfies the other requirements of Section 32 of the Indian Evidence Act. Clearly such statements are not covered by Section 162, Cr.P.C.