Evidentiary Value of Statements Made To Police during Investigation

CrPC gives for pre-trial procedure where police officers investigate, collect evidence and make arrests. But the value of statements made during such procedure is not evidentiary, meaning it cannot be used against the witness. The object of the section is to protect the accused both against over-zealous police officers and untruthful witnesses. Read along to know more!

Before a trial is started in the court there are certain procedures that need to be followed which are known as a pre-trial process. There are many stages in a pre-trial process; one of them is an investigation by the Police. The most important reason for conducting an investigation is the collection of evidence. There are two important steps in the process of investigation, viz. discovery and arrest of the suspected offender, and the search of places and seizure of things considered necessary for the investigation, inquiry or trial.

According to Clause (h) of Section 2, “investigation” includes all the proceedings under the code for the collection of evidence conducted by the police officer or by any person (other than Magistrate) who is authorized by a Magistrate. The Supreme Court has viewed the investigation of an offence as generally consisting of: –

  1. Proceeding to the Spot;
  2. Ascertainment of the facts and circumstances of the case;
  3. Discovery and arrest of the suspected offender;
  4. Collection of evidence relating to the commission of the offence which may consist of:
  • The examination of various persons (including the accused) and the reduction of their statements into writing, if the officers think fit
  • The search of places or seizure of things considered necessary for the investigation or to be produced at the trial.

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 the records at least the substance of such statements

 But the court will not except a police officer to stultify his investigation for the purpose of making such a record. It would be open to the Police Officer to satisfy the Court that his failure in this respect was due to reasons beyond his control. If he does record the statements or their substance, he may do so either in the case diary maintained u/s 172, or on separate pieces of paper, whether loose or stitched into a notebook, or in both, but he must record the statement of each witness or its substance separately and truly as laid down in subsection 3.[1]

A Magistrate cannot reject an application made by the prosecution before it closes its case to examine a witness whose statement has not been recorded under this section. The statement of that witness can still be recorded if the Magistrate finds that the police officer concerned has not carried out his duty u/s 173.[2]

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Where the witnesses were alleged to have improved their statements in the Court, as they had not given such a statement to the police u/s 161 Crpc, it was held that the so-called improvement by witnesses came within the purview of ‘Omission’ and not ‘Contradiction’. Where the offence complained of is exclusively triable by the Court of Session, the Magistrate need not record the statements of the witnesses’ u/s 161.[3]

Evidentiary value of the statements made to the Police during the investigation

A statement recorded by the Police Officer during an 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.[4] And it is considered no evidence to initiate criminal cases u/s 194 and 195 of IPC.[5] But if the person making a statement is called a witness at the time of trial, his former statement, according to normal rule to 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 discrediting him.[6]

The word “statement” appearing in section 161 (3) and section 162 constitutes the entirety of facts stated by a witness when he was examined on different dates by the same investigating officer or different investigating officers. Therefore, the expression “statement or any part of such statement” appearing in section 162 is not confirmed to a single statement given by a witness to a particular officer but takes in all statements given by a witness at different stages or in different dates to different investigating officers or the same investigating officer.[7]

The object of the section is to protect the accused both against over-zealous police officers and untruthful witnesses.[8]

Statements recorded by the Police during the course of investigation are often taken down in a haphazard manner in the midst of a crowd and confusion. If the statement is not reliable for its accuracy and should not, therefore, be used for corroboration, by the same logic it is equally unreliable and should not be used for contradiction.

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However, it is observed by the Law Commission, “there is a material difference between contradiction and corroboration and what is good enough for contradicting a witness is not always good enough for corroborating him the policy of law in permitting a witness to be contradicted by a police state and not permitting him to be corroborated by the same statement is basically sound and sensible.”[9]

If a person is called in the trial as a defence witness, his former statement before the police cannot be used for contradicting him.[10] The reason appears to be that it would be improper to allow a witness to be contradicted by a record prepared by the opposite party.[11]

A statement recorded by the police during the investigation is not at all admissible in evidence and the proper procedure is to confront the witness with contradictions when they are examined and then as the investigating officer regarding those contradictions. Even a statement of a witness recorded by the investigators during the inquest under Section 174 of the Code of Criminal Procedure would be within the inhibition of Section 162.

A statement recorded by the police in the course of investigation can be used in a trial if the person making the statement is examined as a prosecution witness and it cannot be used for any purpose whatsoever if the person making the same is examined as a defence witness.

The statement can be used for the purpose of contradicting such (prosecution) witness in the manner provided by Section 145 of the Evidence Act. The prosecution also can now, with the permission of the Court, use such statements to contradict witnesses or to confront hostile witnesses. Such statements can, however, in no case be used for the purpose of corroboration or as substantive evidence.

A statement made before a police officer during the course of investigation cannot be used for any purpose whatsoever, except when it attracts the provisions of Section 27 or Section 32(1) of the Evidence Act.

If, however, such a statement is made by a witness examined by the prosecution, it may be used by the accused to contradict such a witness and with the permission of the Court, by the prosecution in accordance with Section 145 of the Evidence Act.

If any part of the previous 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.

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The restrictions imposed on the use of statements before the police officer applicable only to such statements as are made to the police officer during the course of the investigation. The words ‘in the course of’ imply that the statement must be made as a step in a pending investigation.

Any other statement, though made during the time investigations were going on, is not hit by the prohibitory rule of Section 162 of the Code of Criminal Procedure. Therefore, such a statement can be used for corroborating or contradicting purposes according to the normal rules of evidence contained in Sections 157 and 145 of the Evidence Act.

Where a person who was assaulted sent a telegram to the police, and the police inspector went to the place and recorded a statement from the complainant and this statement is not considered as a statement to the police officer in the course of an investigation as the investigating officer obtained the statement of a person but not the investigating officer recorded the statement.

In Baleshwar Rai v. State of Bihar, it has been held that it was admissible as an admission as to the motive of the accused under Section 21 of the Evidence Act, when an anonymous letter was written by the accused to the police officer complaining about the act of a Chowkidar, who was ultimately murdered by the accused.

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[1] George, (1955) Andhra 700.

[2] Lokhande, (1972) 75 Bom. L.R. 285.s

[3] P. Ailamma v. T. Zedson, 1989 CrLJ 783 (AP).

[4] Sewaki v. State of H.P., 1981 Cri LJ 919, 920 (HP)

[5] Omkar Namdeo Jadhoo v. Addl. Sessions Judge, Buldana, (1996) 7 S.C.C. 498; 1996 S.C.C. (Cri) 488.

[6] Section 157 & 145, Evidence Act, 1872.

[7] Asan Tharayil Baby v. State of Kerala, 1981 Cri LJ 1165, 1169 (Ker).

[8] Khatri v. State of Bihar, (1981) 2 S.C.C. 493.

[9] 41st Report, Vol. I. p.74, para 14.13.

[10] Shakila Khader v. Nausher Gama, (1975) 4 S.C.C. 122.

[11] 41st Report, Vol. I, p.74.