What is the remedy available to a witness, the moment he comes to
know of certain untrue statements as attributed to him in the Section 161 Cr.P.C.
statement is the question. In terms of the statement recorded during investigation
by the police, naturally, he would be made a prosecution witness by the police.
He would get, if examined either at the stage of inquiry or at the stage of the trial,
ample opportunity to state before the trial Court his version. It would also be
open to such person, on coming to know of the alleged false and fabricated
statement recorded as 161 Cr.P.C., to bring the same to the notice of the officer
superior to the investigating officer, since according to him there is neither any
proper or honest investigation and that the investigation is conducted in a dishonest manner, in which case, it will be always open to the superior police officer
to look into the matter for appropriate further action in the matter in view of his
power under Section 36 Cr.P.C. before the final report, or thereafter for invoking
the power of police for further investigation under Section 173 (8) Cr.P.C
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA.
Decided on: May 31, 2012.
1. CWP No. 145 of 2011.
Prem Chand Jain
Versus
1. State of Himachal Pradesh
Coram
The Hon’ble Mr. Justice Kurian Joseph, Chief Justice.
The Hon’ble Mr. Justice Dharam Chand Chaudhary, Judge.
Citation;2013 CR L J (NOC) 83(H P)
Both the writ petitions essentially pertain to the same grievance
and hence they are disposed of by a common judgment.
2. The petitioner in the former writ petition who has been allegedly
examined under Section 161 Cr.P.C. in connection with the investigation of FIR
No. 27 dated 3.8.2009 registered under Sections 13(1) (d)(ii) read with Section
13(2) of the Prevention of Corruption Act, 1988, by State Vigilance and Anti
Corruption Bureau, Shimla, states that he has never given any statement as
allegedly recorded as per Annexure P-2 nor has any one met him for recording
such a statement. Therefore, the following prayers are made:
“a. Issue an appropriate Writ, Order or Direction to order
enquiry either by an independent agency or by a senior judicial
authority into the facts and circumstances in which the statement
attributed to the petitioner has been recorded;
b. That the name of the petitioner be deleted from the list of
witnesses and a declaration be issued that no such statement was
actually made by him.
c. That appropriate action be taken against the erring public
servants who are shown to have subverted the process of
investigation in case the enquiry so reveals.”
3. The petitioner in the latter has a slight different version.
According to him Annexure P-3, statement allegedly made by him is not what he
stated to the police when he was examined. Therefore, the said petitioner has also
made the same set of prayers, as extracted above.
4. Before adverting to the contentions raised by the parties, we feel it
proper to analyze the legal position. Section 160 of the Cr.P.C. clothes the police
officer with the power to examine any person in the course of investigation who
appears to be acquainted with the facts and circumstances of the case. The
provision reads as follows:
“160. 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 3
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.”
5. Section 161 of the Cr. P.C. provides for the procedure of
examination by the police. The provision reads as follows:
“161. 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 this sub-section may
also be recorded by audio-video electronic means.”
6. It may be seen that under Section 161(2) Cr.P.C. any person thus
examined by the police under section 161 is duty bound to answer truly all
questions put to him by the police officer relating to the case under investigation
by him. However, there is a caveat; he can refuse to answer any question, the
answer to which would have a tendency to expose him to a criminal charge or to a 4
penalty or forfeiture. Thus, a person examined under Section 161 Cr. P.C. though
according to the police is acquainted with the facts of the case can refuse to
answer any question which might even remotely tend to expose him to any
penalty, charge or forfeiture. It is the mandate under Section 161 (3) Cr.P.C. that
the statement recorded by the police officer shall be a true record of the statement
of such person. In other words, the version or impression of the investigating
officer at the time of examination is not to be recorded in the statement under
Section 161 Cr.P.C. What is to be recorded is only the statement of the witnesses
examined by the police officer and hence the mandate “ true record of statement”.
7. Section 162 of the Cr.P.C. provides that no statement shall be
signed by the person making it and it also provides for the use to which the
statement can be put in the course of inquiry or trial. The provision reads as
follows:
“162. Statements to police not to be signed- Use of statements
in evidence.- (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 statement 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 hereafter 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 (
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.
(2) Nothing in this section shall be deemed to apply to any
statement falling within the provisions of clause (1) of section 32 5
of the Indian Evidence Act, 1872 (1 of 1872), or to affect the
provisions of section 27 of that Act.”
8. Thus, it is statutorily made clear that the statement of witness
before the investigating officer cannot be used as evidence. This aspect has also
been dealt with by the Apex Court in detail in Ram Prasad versus State of
Maharastra, reported in AIR 1999 SC 1969. It is only that part of the statement,
if duly proved, which may be used by the accused and with the permission of the
Court by the prosecution to contradict the witness concerned in the manner
provided under Section 145 of the Indian Evidence Act. In other words, the
statement by a witness before the police officer under section 161 Cr.P.C. cannot
be used by the Court at the stage of inquiry or trial of any offence for any purpose
other than the purpose stated above. Therefore, at the outset, we may make it
clear that there is no basis for the apprehension of the petitioners and more
particularly the petitioner in CWP No. 145 of 2011 that the statements made by
them under Section 161 Cr.P.C. would be the basis for steps under Section 319 of
the Cr.P.C. For the purpose of ready reference, we may extract Section 319
Cr.P.C as well:
“ 319. Power to proceed against other persons appearing to be
guilty of offence:- (1) Where, in the course of any inquiry into, or
trial of, an offence, it appears from the evidence that any person
not being the accused has committed any offence for which such
person could be tried together with the accused, the Court may
proceed against such person for the offence which he appears to
have committed.
(2) Where such person is not attending the Court, he may be
arrested or summoned, as the circumstances of the case may
require, for the purpose aforesaid.
(3) Any person attending the Court although not under arrest or
upon a summons, may be detained by such Court for the purpose
of the inquiry into, or trail of, the offence which he appears to have
committed. 6
(4) Where the Court proceeds against any person under subsection (1), then-
(a) the proceedings in respect of such person shall be
commenced afresh, and witnesses re-heard;
(b) subject to the provisions of clause (a), the case may
proceed as if such person had been an accused
person when the Court took cognizance of the
offence upon which the inquiry or trial was
commenced.”
9. It can be clearly seen that any person can be proceeded under
Section 319 Cr.P.C. only in case he appears to be guilty of the offence from the
evidence recorded in the course of inquiry or trial. Since the statement under
Section 161 Cr.P.C. is not evidence, based on that statement no person can be
arraigned as additional accused under Section 319 Cr.P.C. It should appear to the
Court from the evidence recorded during inquiry or trial and then only, any step
under Section 319 Cr.P.C. can be initiated. It is seen that in this case during the
stage of inquiry so far, both the petitioners have not been examined in the Court.
Therefore, their statement allegedly recorded under Section 161 Cr.P.C. by the
investigating officer cannot be used for any purpose at the stage of inquiry or trial,
except for the limited use as provided under the proviso to Section 162(2), which
we have already referred to above.
10. Having referred to the legal position as above, we shall now advert
to the factual matrix. According to the petitioner in CWP No. 145 of 2011, Sh.
Jain, has held high positions in Gujarat Ambuja Cement, including the post of
Vice President of the Company during 1988-89 and he was incharge of Darlaghat
Plant of the Company during 1995. He is a highly responsible, socially conscious
and morally upright person presently aged 82 years. He is said to have read news
item in the newspaper dated 18.12.2010, wherein his statement had been
reproduced verbatim and it was shockingly realized by him that the statement as
recorded was false and fabricated. No doubt, there are incriminating statements 7
in Annexure P-2. Whether a person of the stature of the petitioner would have
given such a self incriminating statement is the question posed by the petitioner
for strengthening his contention that the same is false and fabricated. It is stated
at paragraph 5 of the writ petition as follows:
“5.……
It is pertinent to show that the address of the petitioner in
the statement has been given of Muzaffar Nagar Uttar Pradesh
whereas the petitioner is presently residing at D II/2322, Vasant
Kunj, New Delhi since 1998. It is further pertinent to mention that
respondent No.2 came to meet the petitioner at Delhi on 25/3/2010
and pressurized the petitioner to give a statement under Section
161 of the Code of Criminal Procedure Code in FIR No. 27 dated
3.8.2009. The petitioner categorically informed and updated
respondent No.2 with regard to his service and functioning with
Gujarat Ambuja Cement till his retirement in the year 2000 which
apparently forms the first paragraph of the alleged statement under
Section 161 of the Code of Criminal Procedure.
No other questions were put to petitioner No.2 nor were the issues
wrecked up in the substantive part of the statement even casually
discussed.
……………….”
11. Inviting reference to the decision of the Supreme Court in P.
Sirajuddin Etc. versus State of Madras Etc., reported in 1970 (1) SCC 595, it is
submitted by the learned senior counsel for the petitioners that the procedure
adopted for investigation in this case is un- precedented and outrageous as to
shock one’s sense of justice and fair play and hence appropriate directions may be
issued not to call the petitioners as witnesses on the basis of the alleged statement
under Section 161 Cr.P.C. It is pointed out that in the said case the High Court
had issued a direction to exclude the incriminating statements, recorded under
Section 161 Cr.P.C. which have been found to be vitiated by the Court and that
the said decision has been upheld by the Apex Court in the case cited above. 8
12. What is the remedy available to a witness, the moment he comes to
know of certain untrue statements as attributed to him in the Section 161 Cr.P.C.
statement is the question. In terms of the statement recorded during investigation
by the police, naturally, he would be made a prosecution witness by the police.
He would get, if examined either at the stage of inquiry or at the stage of the trial,
ample opportunity to state before the trial Court his version. It would also be
open to such person, on coming to know of the alleged false and fabricated
statement recorded as 161 Cr.P.C., to bring the same to the notice of the officer
superior to the investigating officer, since according to him there is neither any
proper or honest investigation and that the investigation is conducted in a dishonest manner, in which case, it will be always open to the superior police officer
to look into the matter for appropriate further action in the matter in view of his
power under Section 36 Cr.P.C. before the final report, or thereafter for invoking
the power of police for further investigation under Section 173 (8) Cr.P.C In
Sakiri Vasu Vrs. State of Uttar Pradesh & others, reported in (2008) 2 SCC 409,
at paragraph-15, it has been held by the apex Court as follows:
“15. Section 156(3) provides for a check by the Magistrate on
the police performing its duties under Chapter XII CrPC. In cases
where the Magistrate finds that the police has not done its duty of
investigating the case at all, or has not done it satisfactorily, he can
issue a direction to the police to do the investigation properly, and
can monitor the same.”
13. We may also refer to the eloquent observation made by the Apex
Court in Sirajuddin’s case (supra) with regard to the need for fair investigation
made after referring to the scheme of investigation under the Cr.P.C. To quote,
para 19:
“19. All the above provisions of the Code are aimed at securing
a fair investigation into the facts and circumstances of the criminal
case, however serious the crime and however incriminating the
circumstances may be against a person supposed to be guilty of a 9
crime the Code of Criminal Procedure aims at securing a
conviction if it can be had by the use of utmost fairness on the part
of the officers investigating into the crime before the lodging of a
charge-sheet. Clearly the idea is that no one should be put to the
harassment of a criminal trial unless there are good and substantial
reasons for holding it.”
Therefore, it will also be open to such a witness to bring the
matters to the notice of the trial Court also for appropriate further action. In this
case we are informed that final report (challan) has already been filed. The
request made by the petitioner is for an inquiry by this Court. We are afraid, at
this stage, it will not be proper for this Court to inquire into such matters. In
Sirajuddin’s case, the petition was at the instance of the accused and the stage was
also different, apart from the difference on the factual matrix. It was a case where
statement under Section 161 Cr.P.C. of the witnesses were recorded with their
signatures and on the promise of immunity from prosecution and thereby inducing
them even to make incriminating statements.
14. There is also a prayer made by the petitioner for a direction for
recording the statement under Section 164 of the Cr.P.C. For ready reference, we
may extract the provision:
“164. Recording of confessions and statements:- (1) Any
Metropolitan Magistrate or Judicial Magistrate may, whether or
not he has jurisdiction in the case, record any confession or
statement made to him in the course of any investigation under this
Chapter or under any other law for the time being in force, or at the
time afterwards before the commencement of the inquiry or trial:
[Provided that any confession or statement made under this
sub-section may also be recorded by audio-video electronic means
in the presence of the advocate of the person accused of an
offence:
Provided further that no confession shall be recorded by a
police officer on whom any power of a Magistrate has been
conferred under any law for the time being in force.] 10
(2) The Magistrate shall, before recording any such confession,
explain to the person making it that he is not bound to make a
confession and that, if he does so, it may be used as evidence
against him; and the Magistrate shall not record any such
confession unless, upon questioning the person making it, he has
reason to believe that it is being made voluntarily.
(3) If at any time before the confession is recorded, the person
appearing before the Magistrate states that he is not willing to
make the confession, the Magistrate shall not authorise the
detention of such person in police custody.
(4) Any such confession shall be recorded in the manner
provided in section 281 for recording the examination of an
accused person and shall be signed by the person making the
confession; and the Magistrate shall make a memorandum at the
foot of such record to the following effect:-
“I have explained to (name) that he is not bound to
make a confession and that, if he does so, any confession
he may make may be used as evidence against him and I
believe that this confession was voluntarily made. It was
taken in my presence and hearing, and was read over to the
person making it and admitted by him to be correct, and it
contains a full and true account of the statement made by
him.
(Signed) A.B.
Magistrate”
(5) Any statement (other than a confession) made under subsection (1) shall be recorded in such manner hereinafter provided
for the recording of evidence as is, in the opinion of the Magistrate,
best fitted to the circumstances of the case, and the Magistrate shall
have power to administer oath to the person whose statement is so
recorded.
(6) The Magistrate recording a confession or statement under
this section shall forward it to the Magistrate by whom the case is
to be inquired into or tried.”
15. The scheme of investigation under Cr.P.C. would show that it is
for the investigating officer to decide as to whose statement should be recorded
and in what manner it should be recorded. No Court can direct the investigating 11
officer to record a statement of witness under Section 164 Cr.P.C. It is the
discretion and jurisdiction wholly of the investigating officer. This aspect has
been considered by the Supreme Court in Jogindra Nahak and others Vrs State
of Orissa & others, reported in AIR 1999 SC 2565. To quote from the headnote:
“Section 164(1) cannot be interpreted as empowering a Magistrate
to record the statement of a person unsponsored by the
investigating agency. The fact that there may be instances when
the investigating officer would be disinclined to record statements
of willing witnesses and therefore such witnesses must have a
remedy to have their version regarding a case put on record, is no
answer to the question whether any intending witness can
straightway approach a Magistrate for recording his statement
under Section 164 of the Code. Even for such witness provisions
are available in law, e.g. the accused can cite them as defence
witnesses during trial or the Court can be requested to summon
them under Section 311 of the Code. When such remedies are
available to witnesses (who may be sidelined by the investigating
officers) there is no special reason why the Magistrate should be
burdened with the additional task of recording the statements of all
and sundry who may knock at the door of the Court with a request
to record their statement under Section 164 of the Code. On the
other hand, if door is opened to such persons to get in and if the
Magistrate are put under the obligation to record their statements,
then too many persons sponsored by culprits might throng before
the portals of the Magistrate Courts for the purpose of creating
record in advance for the purpose of helping the culprits.”
16. Whether a witness can request the police officer to sponsor him to
record his statement under Section 164 Cr.P.C. is yet another question. Having
regard to the procedural scheme of the investigation, it is open to the witness to
make a request to the police officer for recording his statement under Section 164
Cr.P.C. and it is for the police officer to take a decision, having regard to the facts
and circumstances of the each case as to whether the statement should be got
recorded under Section 164 Cr.P.C. or not. 12
17. In the instant case, the petitioner in CWP No. 145 of 2011 has not
given any complaint to the superior officer of the investigating officer with regard
to the alleged false and fabricated statement recorded under Section 161 Cr.P.C.
He had also not given any request to the police officer to sponsor him for
recording his statement under Section 164 Cr.P.C. Therefore, we need not go into
those aspects at this stage.
18. As far as Sh. Kapil Mohan-petitioner in CWP No. 1856 of 2011 is
concerned, it is stated in the writ petition that he is the Managing Director of a
well reputed business concern namely Mohan Meakin Limited. He has served the
Indian Army and retired as Brigadier and was honored with ‘Vashisht Sewa
Medal’ for his dynamic and selfless services rendered as officer of Indian Armed
Forces. In due recognition of his services rendered to the nation, he was also
honoured by the Country with ‘Padamshree’ award in the year 2010. According
to him, he came to know of the alleged statement attributed to him only from the
newspaper published on 18.12.2010 and thereafter alleged statement under
Section 161 Cr.P.C. was obtained which is Annexure P-2. All that what we have
stated above, would apply in equal force to his case as well. The only difference
is that according to him, he has never been examined by any police officer nor has
he stated anything to the police. That is something to be verified by the trial
Court at the appropriate stage either of inquiry or of trial including as to whether
he had been given any notice under Section 160 Cr.P.C. and whether the case
diary would otherwise show that the police officer had otherwise travelled to his
place and examined him. As in the case of the petitioner in CWP No. 145 of
2011, it is open to the petitioner in this case also to bring these matters to the
notice of the superior police officer. Equally, it is also for him to make a request
to the investigating officer to sponsor him for recording his statement under
Section 164 Cr.P.C, in case there is any further investigation, in which case, the
investigating officer will look into the same and take appropriate action. Other
than what we have stated above, under the scheme of Cr.P.C., no other relief at 13
this stage can be given by this Court. The Writ Petitions are accordingly disposed
of, as above, so also the pending application(s), if any.
(Justice Kurian Joseph),
Chief Justice.
May 31, 2012, ( Justice Dharam Chand Chaudhary),
(karan) Judge.
Print Page
know of certain untrue statements as attributed to him in the Section 161 Cr.P.C.
statement is the question. In terms of the statement recorded during investigation
by the police, naturally, he would be made a prosecution witness by the police.
He would get, if examined either at the stage of inquiry or at the stage of the trial,
ample opportunity to state before the trial Court his version. It would also be
open to such person, on coming to know of the alleged false and fabricated
statement recorded as 161 Cr.P.C., to bring the same to the notice of the officer
superior to the investigating officer, since according to him there is neither any
proper or honest investigation and that the investigation is conducted in a dishonest manner, in which case, it will be always open to the superior police officer
to look into the matter for appropriate further action in the matter in view of his
power under Section 36 Cr.P.C. before the final report, or thereafter for invoking
the power of police for further investigation under Section 173 (8) Cr.P.C
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA.
Decided on: May 31, 2012.
1. CWP No. 145 of 2011.
Prem Chand Jain
Versus
1. State of Himachal Pradesh
Coram
The Hon’ble Mr. Justice Kurian Joseph, Chief Justice.
The Hon’ble Mr. Justice Dharam Chand Chaudhary, Judge.
Citation;2013 CR L J (NOC) 83(H P)
Both the writ petitions essentially pertain to the same grievance
and hence they are disposed of by a common judgment.
2. The petitioner in the former writ petition who has been allegedly
examined under Section 161 Cr.P.C. in connection with the investigation of FIR
No. 27 dated 3.8.2009 registered under Sections 13(1) (d)(ii) read with Section
13(2) of the Prevention of Corruption Act, 1988, by State Vigilance and Anti
Corruption Bureau, Shimla, states that he has never given any statement as
allegedly recorded as per Annexure P-2 nor has any one met him for recording
such a statement. Therefore, the following prayers are made:
“a. Issue an appropriate Writ, Order or Direction to order
enquiry either by an independent agency or by a senior judicial
authority into the facts and circumstances in which the statement
attributed to the petitioner has been recorded;
b. That the name of the petitioner be deleted from the list of
witnesses and a declaration be issued that no such statement was
actually made by him.
c. That appropriate action be taken against the erring public
servants who are shown to have subverted the process of
investigation in case the enquiry so reveals.”
3. The petitioner in the latter has a slight different version.
According to him Annexure P-3, statement allegedly made by him is not what he
stated to the police when he was examined. Therefore, the said petitioner has also
made the same set of prayers, as extracted above.
4. Before adverting to the contentions raised by the parties, we feel it
proper to analyze the legal position. Section 160 of the Cr.P.C. clothes the police
officer with the power to examine any person in the course of investigation who
appears to be acquainted with the facts and circumstances of the case. The
provision reads as follows:
“160. 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 3
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.”
5. Section 161 of the Cr. P.C. provides for the procedure of
examination by the police. The provision reads as follows:
“161. 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 this sub-section may
also be recorded by audio-video electronic means.”
6. It may be seen that under Section 161(2) Cr.P.C. any person thus
examined by the police under section 161 is duty bound to answer truly all
questions put to him by the police officer relating to the case under investigation
by him. However, there is a caveat; he can refuse to answer any question, the
answer to which would have a tendency to expose him to a criminal charge or to a 4
penalty or forfeiture. Thus, a person examined under Section 161 Cr. P.C. though
according to the police is acquainted with the facts of the case can refuse to
answer any question which might even remotely tend to expose him to any
penalty, charge or forfeiture. It is the mandate under Section 161 (3) Cr.P.C. that
the statement recorded by the police officer shall be a true record of the statement
of such person. In other words, the version or impression of the investigating
officer at the time of examination is not to be recorded in the statement under
Section 161 Cr.P.C. What is to be recorded is only the statement of the witnesses
examined by the police officer and hence the mandate “ true record of statement”.
7. Section 162 of the Cr.P.C. provides that no statement shall be
signed by the person making it and it also provides for the use to which the
statement can be put in the course of inquiry or trial. The provision reads as
follows:
“162. Statements to police not to be signed- Use of statements
in evidence.- (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 statement 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 hereafter 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 (
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.
(2) Nothing in this section shall be deemed to apply to any
statement falling within the provisions of clause (1) of section 32 5
of the Indian Evidence Act, 1872 (1 of 1872), or to affect the
provisions of section 27 of that Act.”
8. Thus, it is statutorily made clear that the statement of witness
before the investigating officer cannot be used as evidence. This aspect has also
been dealt with by the Apex Court in detail in Ram Prasad versus State of
Maharastra, reported in AIR 1999 SC 1969. It is only that part of the statement,
if duly proved, which may be used by the accused and with the permission of the
Court by the prosecution to contradict the witness concerned in the manner
provided under Section 145 of the Indian Evidence Act. In other words, the
statement by a witness before the police officer under section 161 Cr.P.C. cannot
be used by the Court at the stage of inquiry or trial of any offence for any purpose
other than the purpose stated above. Therefore, at the outset, we may make it
clear that there is no basis for the apprehension of the petitioners and more
particularly the petitioner in CWP No. 145 of 2011 that the statements made by
them under Section 161 Cr.P.C. would be the basis for steps under Section 319 of
the Cr.P.C. For the purpose of ready reference, we may extract Section 319
Cr.P.C as well:
“ 319. Power to proceed against other persons appearing to be
guilty of offence:- (1) Where, in the course of any inquiry into, or
trial of, an offence, it appears from the evidence that any person
not being the accused has committed any offence for which such
person could be tried together with the accused, the Court may
proceed against such person for the offence which he appears to
have committed.
(2) Where such person is not attending the Court, he may be
arrested or summoned, as the circumstances of the case may
require, for the purpose aforesaid.
(3) Any person attending the Court although not under arrest or
upon a summons, may be detained by such Court for the purpose
of the inquiry into, or trail of, the offence which he appears to have
committed. 6
(4) Where the Court proceeds against any person under subsection (1), then-
(a) the proceedings in respect of such person shall be
commenced afresh, and witnesses re-heard;
(b) subject to the provisions of clause (a), the case may
proceed as if such person had been an accused
person when the Court took cognizance of the
offence upon which the inquiry or trial was
commenced.”
9. It can be clearly seen that any person can be proceeded under
Section 319 Cr.P.C. only in case he appears to be guilty of the offence from the
evidence recorded in the course of inquiry or trial. Since the statement under
Section 161 Cr.P.C. is not evidence, based on that statement no person can be
arraigned as additional accused under Section 319 Cr.P.C. It should appear to the
Court from the evidence recorded during inquiry or trial and then only, any step
under Section 319 Cr.P.C. can be initiated. It is seen that in this case during the
stage of inquiry so far, both the petitioners have not been examined in the Court.
Therefore, their statement allegedly recorded under Section 161 Cr.P.C. by the
investigating officer cannot be used for any purpose at the stage of inquiry or trial,
except for the limited use as provided under the proviso to Section 162(2), which
we have already referred to above.
10. Having referred to the legal position as above, we shall now advert
to the factual matrix. According to the petitioner in CWP No. 145 of 2011, Sh.
Jain, has held high positions in Gujarat Ambuja Cement, including the post of
Vice President of the Company during 1988-89 and he was incharge of Darlaghat
Plant of the Company during 1995. He is a highly responsible, socially conscious
and morally upright person presently aged 82 years. He is said to have read news
item in the newspaper dated 18.12.2010, wherein his statement had been
reproduced verbatim and it was shockingly realized by him that the statement as
recorded was false and fabricated. No doubt, there are incriminating statements 7
in Annexure P-2. Whether a person of the stature of the petitioner would have
given such a self incriminating statement is the question posed by the petitioner
for strengthening his contention that the same is false and fabricated. It is stated
at paragraph 5 of the writ petition as follows:
“5.……
It is pertinent to show that the address of the petitioner in
the statement has been given of Muzaffar Nagar Uttar Pradesh
whereas the petitioner is presently residing at D II/2322, Vasant
Kunj, New Delhi since 1998. It is further pertinent to mention that
respondent No.2 came to meet the petitioner at Delhi on 25/3/2010
and pressurized the petitioner to give a statement under Section
161 of the Code of Criminal Procedure Code in FIR No. 27 dated
3.8.2009. The petitioner categorically informed and updated
respondent No.2 with regard to his service and functioning with
Gujarat Ambuja Cement till his retirement in the year 2000 which
apparently forms the first paragraph of the alleged statement under
Section 161 of the Code of Criminal Procedure.
No other questions were put to petitioner No.2 nor were the issues
wrecked up in the substantive part of the statement even casually
discussed.
……………….”
11. Inviting reference to the decision of the Supreme Court in P.
Sirajuddin Etc. versus State of Madras Etc., reported in 1970 (1) SCC 595, it is
submitted by the learned senior counsel for the petitioners that the procedure
adopted for investigation in this case is un- precedented and outrageous as to
shock one’s sense of justice and fair play and hence appropriate directions may be
issued not to call the petitioners as witnesses on the basis of the alleged statement
under Section 161 Cr.P.C. It is pointed out that in the said case the High Court
had issued a direction to exclude the incriminating statements, recorded under
Section 161 Cr.P.C. which have been found to be vitiated by the Court and that
the said decision has been upheld by the Apex Court in the case cited above. 8
12. What is the remedy available to a witness, the moment he comes to
know of certain untrue statements as attributed to him in the Section 161 Cr.P.C.
statement is the question. In terms of the statement recorded during investigation
by the police, naturally, he would be made a prosecution witness by the police.
He would get, if examined either at the stage of inquiry or at the stage of the trial,
ample opportunity to state before the trial Court his version. It would also be
open to such person, on coming to know of the alleged false and fabricated
statement recorded as 161 Cr.P.C., to bring the same to the notice of the officer
superior to the investigating officer, since according to him there is neither any
proper or honest investigation and that the investigation is conducted in a dishonest manner, in which case, it will be always open to the superior police officer
to look into the matter for appropriate further action in the matter in view of his
power under Section 36 Cr.P.C. before the final report, or thereafter for invoking
the power of police for further investigation under Section 173 (8) Cr.P.C In
Sakiri Vasu Vrs. State of Uttar Pradesh & others, reported in (2008) 2 SCC 409,
at paragraph-15, it has been held by the apex Court as follows:
“15. Section 156(3) provides for a check by the Magistrate on
the police performing its duties under Chapter XII CrPC. In cases
where the Magistrate finds that the police has not done its duty of
investigating the case at all, or has not done it satisfactorily, he can
issue a direction to the police to do the investigation properly, and
can monitor the same.”
13. We may also refer to the eloquent observation made by the Apex
Court in Sirajuddin’s case (supra) with regard to the need for fair investigation
made after referring to the scheme of investigation under the Cr.P.C. To quote,
para 19:
“19. All the above provisions of the Code are aimed at securing
a fair investigation into the facts and circumstances of the criminal
case, however serious the crime and however incriminating the
circumstances may be against a person supposed to be guilty of a 9
crime the Code of Criminal Procedure aims at securing a
conviction if it can be had by the use of utmost fairness on the part
of the officers investigating into the crime before the lodging of a
charge-sheet. Clearly the idea is that no one should be put to the
harassment of a criminal trial unless there are good and substantial
reasons for holding it.”
Therefore, it will also be open to such a witness to bring the
matters to the notice of the trial Court also for appropriate further action. In this
case we are informed that final report (challan) has already been filed. The
request made by the petitioner is for an inquiry by this Court. We are afraid, at
this stage, it will not be proper for this Court to inquire into such matters. In
Sirajuddin’s case, the petition was at the instance of the accused and the stage was
also different, apart from the difference on the factual matrix. It was a case where
statement under Section 161 Cr.P.C. of the witnesses were recorded with their
signatures and on the promise of immunity from prosecution and thereby inducing
them even to make incriminating statements.
14. There is also a prayer made by the petitioner for a direction for
recording the statement under Section 164 of the Cr.P.C. For ready reference, we
may extract the provision:
“164. Recording of confessions and statements:- (1) Any
Metropolitan Magistrate or Judicial Magistrate may, whether or
not he has jurisdiction in the case, record any confession or
statement made to him in the course of any investigation under this
Chapter or under any other law for the time being in force, or at the
time afterwards before the commencement of the inquiry or trial:
[Provided that any confession or statement made under this
sub-section may also be recorded by audio-video electronic means
in the presence of the advocate of the person accused of an
offence:
Provided further that no confession shall be recorded by a
police officer on whom any power of a Magistrate has been
conferred under any law for the time being in force.] 10
(2) The Magistrate shall, before recording any such confession,
explain to the person making it that he is not bound to make a
confession and that, if he does so, it may be used as evidence
against him; and the Magistrate shall not record any such
confession unless, upon questioning the person making it, he has
reason to believe that it is being made voluntarily.
(3) If at any time before the confession is recorded, the person
appearing before the Magistrate states that he is not willing to
make the confession, the Magistrate shall not authorise the
detention of such person in police custody.
(4) Any such confession shall be recorded in the manner
provided in section 281 for recording the examination of an
accused person and shall be signed by the person making the
confession; and the Magistrate shall make a memorandum at the
foot of such record to the following effect:-
“I have explained to (name) that he is not bound to
make a confession and that, if he does so, any confession
he may make may be used as evidence against him and I
believe that this confession was voluntarily made. It was
taken in my presence and hearing, and was read over to the
person making it and admitted by him to be correct, and it
contains a full and true account of the statement made by
him.
(Signed) A.B.
Magistrate”
(5) Any statement (other than a confession) made under subsection (1) shall be recorded in such manner hereinafter provided
for the recording of evidence as is, in the opinion of the Magistrate,
best fitted to the circumstances of the case, and the Magistrate shall
have power to administer oath to the person whose statement is so
recorded.
(6) The Magistrate recording a confession or statement under
this section shall forward it to the Magistrate by whom the case is
to be inquired into or tried.”
15. The scheme of investigation under Cr.P.C. would show that it is
for the investigating officer to decide as to whose statement should be recorded
and in what manner it should be recorded. No Court can direct the investigating 11
officer to record a statement of witness under Section 164 Cr.P.C. It is the
discretion and jurisdiction wholly of the investigating officer. This aspect has
been considered by the Supreme Court in Jogindra Nahak and others Vrs State
of Orissa & others, reported in AIR 1999 SC 2565. To quote from the headnote:
“Section 164(1) cannot be interpreted as empowering a Magistrate
to record the statement of a person unsponsored by the
investigating agency. The fact that there may be instances when
the investigating officer would be disinclined to record statements
of willing witnesses and therefore such witnesses must have a
remedy to have their version regarding a case put on record, is no
answer to the question whether any intending witness can
straightway approach a Magistrate for recording his statement
under Section 164 of the Code. Even for such witness provisions
are available in law, e.g. the accused can cite them as defence
witnesses during trial or the Court can be requested to summon
them under Section 311 of the Code. When such remedies are
available to witnesses (who may be sidelined by the investigating
officers) there is no special reason why the Magistrate should be
burdened with the additional task of recording the statements of all
and sundry who may knock at the door of the Court with a request
to record their statement under Section 164 of the Code. On the
other hand, if door is opened to such persons to get in and if the
Magistrate are put under the obligation to record their statements,
then too many persons sponsored by culprits might throng before
the portals of the Magistrate Courts for the purpose of creating
record in advance for the purpose of helping the culprits.”
16. Whether a witness can request the police officer to sponsor him to
record his statement under Section 164 Cr.P.C. is yet another question. Having
regard to the procedural scheme of the investigation, it is open to the witness to
make a request to the police officer for recording his statement under Section 164
Cr.P.C. and it is for the police officer to take a decision, having regard to the facts
and circumstances of the each case as to whether the statement should be got
recorded under Section 164 Cr.P.C. or not. 12
17. In the instant case, the petitioner in CWP No. 145 of 2011 has not
given any complaint to the superior officer of the investigating officer with regard
to the alleged false and fabricated statement recorded under Section 161 Cr.P.C.
He had also not given any request to the police officer to sponsor him for
recording his statement under Section 164 Cr.P.C. Therefore, we need not go into
those aspects at this stage.
18. As far as Sh. Kapil Mohan-petitioner in CWP No. 1856 of 2011 is
concerned, it is stated in the writ petition that he is the Managing Director of a
well reputed business concern namely Mohan Meakin Limited. He has served the
Indian Army and retired as Brigadier and was honored with ‘Vashisht Sewa
Medal’ for his dynamic and selfless services rendered as officer of Indian Armed
Forces. In due recognition of his services rendered to the nation, he was also
honoured by the Country with ‘Padamshree’ award in the year 2010. According
to him, he came to know of the alleged statement attributed to him only from the
newspaper published on 18.12.2010 and thereafter alleged statement under
Section 161 Cr.P.C. was obtained which is Annexure P-2. All that what we have
stated above, would apply in equal force to his case as well. The only difference
is that according to him, he has never been examined by any police officer nor has
he stated anything to the police. That is something to be verified by the trial
Court at the appropriate stage either of inquiry or of trial including as to whether
he had been given any notice under Section 160 Cr.P.C. and whether the case
diary would otherwise show that the police officer had otherwise travelled to his
place and examined him. As in the case of the petitioner in CWP No. 145 of
2011, it is open to the petitioner in this case also to bring these matters to the
notice of the superior police officer. Equally, it is also for him to make a request
to the investigating officer to sponsor him for recording his statement under
Section 164 Cr.P.C, in case there is any further investigation, in which case, the
investigating officer will look into the same and take appropriate action. Other
than what we have stated above, under the scheme of Cr.P.C., no other relief at 13
this stage can be given by this Court. The Writ Petitions are accordingly disposed
of, as above, so also the pending application(s), if any.
(Justice Kurian Joseph),
Chief Justice.
May 31, 2012, ( Justice Dharam Chand Chaudhary),
(karan) Judge.
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