Guidelines of Madras high court for recording of statement of witnesses U/S 164 of CRPC

  To recapitulate and for easy reference, we summarise as follows:

a. The 164 Cr.P.C. statement of victim/witness:

— A statement of a witness/victim can be recorded under Section 164 Cr.P.C. only at the instance of the Investigating Officer of the case.

— It is not necessary for the Investigating Officer to approach the CMM/CJM with an application for nominating a Magistrate to record the statement of a witness/victim under Section 164 Cr.P.C.

— A Magistrate, whether he has got jurisdiction or not, to inquire into or try the case, can record the statement of a witness/victim under Section 164 Cr.P.C. on the request of the Investigating Officer of the case.

— The Presiding Officer of a Special Court which has been empowered to take cognizance of an offence without there being a need for committal, may also record the statement of a witness/victim under Section 164 Cr P.C. on the request of the Investigating Officer.

— After recording the statement of a witness/victim under Section 164 Cr.P.C. the Judge/Magistrate shall arrange to take two photocopies of such statement, under his direct supervision and certify the same as true copies.

— He shall furnish one such certified photocopy of the statement to the Investigating Officer free of cost, immediately, with a specific direction to the latter to use it only for the purpose of investigation and not to make its contents public, until the investigation is completed and final report filed.

— The other certified photocopy of such statement shall be kept in a sealed cover in the safe custody of the Judge/Magistrate.

— If the Magistrate who had recorded the 164 Cr.P.C. statement is not the jurisdictional Magistrate, he shall send the original statement to the jurisdictional Court, either through a special messenger or by registered post with acknowledgment due.

— If the Judge/Magistrate who had recorded the 164 Cr.P.C. statement is himself the jurisdictional Magistrate, he shall keep the original of the statement in the case records.{Para 97}

In the High Court of Madras

(Before Indira Banerjee, C.J. and P.N. Prakash, J.)

Murugasamy  Vs  State 

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Can the Court treat the witness's statement identifying the suspect in the Test identification parade as substantive evidence?

  Thus, it is clear that the Test Identification Parade is conducted by the Magistrate only in aid of investigation and the statement of the witness identifying the suspect in the parade cannot be treated as a substantive evidence of identification in the trial of the accused. It is only corroborative evidence.{Para 83}

In the High Court of Madras

(Before Indira Banerjee, C.J. and P.N. Prakash, J.)

Murugasamy  Vs  State 

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Whether Session Judge or Special Judge must examine Magistrate who has recorded statement of witness U/S 164 of CRPC?

  A Division Bench of this Court, in R. Murugesan v. State, [(2014) 1 LW (Cri) 339], in which, one of us (P.N. Prakash, J.) was a part, has elaborately discussed the evidentiary value of the statement of a witness recorded under Section 164 Cr.P.C. Despite the directions of the said Division Bench that the Magistrate recording the statement under Section 164 Cr.P.C. need not be examined as a witness, the essence of those directions has not percolated into the subordinate judiciary. In the said judgment, the Division Bench has set out the procedure as to how Public Prosecutors in the Trial Courts should deal with a witness, vis-a-vis, his statement recorded under Section 164 Cr.P.C. The Division Bench has placed reliance upon the judgment of the Supreme Court in State of Delhi v. Shri Ram Lohia, [AIR 1960 SC 490] and the Division Bench judgment of the Andhra Pradesh High Court in Bashapaka Laxmiah v. State of Andhra Pradesh, [2001 Cri LJ 4066], to conclude that a Magistrate recording the statement of a witness under Section 164 Cr.P.C. need not be examined as a witness in the trial of the case. We are extracting below the relevant passages from Shri Ram Lohia (supra) and Bashapaka Laxmiah (supra): Shri Ram Lohia:

“Statements recorded under S. 164 of the Code are not substantive evidence in a case and cannot be made use of except to corroborate or contradict the witness. An admission by a witness that a statement of his was recorded under S. 164 of the Code and that what he had stated there was true would not make the entire statement admissible; much less could any part of it be used as substantive evidence in the case.

A Judge commits an error of law in using the statement of a witness under S. 164 as a substantive evidence in coming to the conclusion that he had been won over.”{Para 55}

56. Bashapaka Laxmiah:

“18. Repeatedly, we have issued instructions that statement under S. 164 Cr.P.C. is not a substantive piece of evidence. It, is not necessary to call the Magistrate to give evidence to prove S. 164 statement. Statements under S. 164 Cr.P.C. are available to the defence for contradiction by obtaining the certified copies. The S. 164 statement recorded by the Magistrate is a public document. Such practice, hereinafter, be stopped.”

57. In Re:—To issue certain guidelines regarding inadequacies and deficiencies in criminal trials, [2017 SCC OnLine SC 298], the Supreme Court has called for remarks from various stakeholders on the suggestions made by Justice Basant, a retired Judge of the Kerala High Court, for streamlining and putting in place good practices in the conduct of criminal trials. One such suggestion is as under:

“11. The practice of omnibus marking of S. 164 statement of witness deserves to be deprecated. The relevant portion of such prior statements of living persons used for contradiction or corroboration u/s 145/157 of the Evidence Act deserves to be marked separately and specifically."

58. In the light of the above discussion, we seek to build upon the Division Bench judgment of this Court in Murugesan (supra) by holding that even in cases, where, the witness completely denies having given a statement under Section 164 Cr.P.C. the Magistrate need not be examined as a witness and the factum of the witness having given such a statement to the Magistrate and the contradiction between his evidence and his previous statement can be proved in the examination of the Investigating Officer, on whose sponsorship, the said witness was produced before the Magistrate for the purpose of recording his statement. This, in our considered opinion, will be in consonance with the observations of the Privy Council in Nazir Ahmad v. The King Emperor, [(1936) 44 LW 583 : AIR 1936 PC 253] and Kashmira Singh v. State of Madhya Pradesh, [AIR 1952 SC 159], about which, we shall discuss in detail in the subsequent paragraphs.

59. A statement recorded under Section 164 Cr.P.C. is a public document within the meaning of Section 74(iii) of the Evidence Act as held by a Full Bench of this Court in State of Madras v. Krishnan, [(1960) 73 LW 713 : AIR 1961 Mad 92]. The original of the statement, which would form part and parcel of the Court records, is a primary evidence under Section 62 of the Evidence Act for proving the fact that the said witness had appeared before the Magistrate on the date found thereon and had given a statement, but, it does not prove the veracity of its contents.

In the High Court of Madras

(Before Indira Banerjee, C.J. and P.N. Prakash, J.)

Murugasamy  Vs  State 

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Notes on recording of confession and statement by Magistrate (S 164 of CRPC)

S 164 of CRPC. Recording of confession and statements:-

1) Any metropolitan Magistrate  or Judicial magistrate may record any confession or statement made to him in the course of investigation or at any time afterwards before commencement of inquiry or trial;

provided that any confession or statement made under this section may also be recorded by audio-video electronic means in the presence of advocate of person accused of an offence:{inserted by amendment Act 2008 with effect from 31-12-2009}

Read important judgments on S 164 of CRPC:

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When delay in recording statement of witness by police will be fatal to prosecution case?

Sitaram Sakruji Kokarde (PW 5) though claimed to
have witnessed the incident of assault and deposed that both the
appellants beat deceased with the stick and thereafter, took him
towards the water tank and threw him in the pit which was near
the water tank, however, the subsequent conduct of this witness
rendered his testimony doubtful. As per the prosecution case
disclosed by Jaiwantabai (PW 3), she has seen the dead body of
her husband deceased Tukaram floating on the water of the tank

on 18.5.2001 and the medical evidence shows that the same was
highly decomposed. That means deceased Tukaram died a couple
of days prior to 18.5.2001 and though witness Sitaram was
resident of the same village and was also knowing the accused as
well as the deceased including Jaiwantabai, the widow of the
deceased; and though this witness Sitaram claimed to have
witnessed the incident which had taken place sometime prior to
18.5.2001, he did not disclose the incident to anybody including
the police till 23.5.2001 and for the first time, on 23.5.2001 he
disclosed the incident of assault to Jaiwantabai, widow of the
deceased and the statement of this witness was recorded by the
police on 26.5.2001. Avinash (PW 7), the investigating officer has
not given any reason or explanation for the inordinate delay
caused in recording the statement of this witness. Similarly, the
subsequent conduct of witness Sitaram (PW 5) in keeping mum
and failed to disclose the incident to anybody in the village for so
many days, in our view, is not only abnormal conduct but it also
creates serious doubt about the authenticity and truthfulness of

the testimony of this witness Sitaram (PW 5).
 It is nodoubt true that, in the examination-in-chief of
witness Sitaram, it has come that appellant Ganesh warned
Sitaram not to disclose the incident to anybody. However, it is the
case of the prosecution disclosed by Jaiwantabai (PW 3) that
Sitaram in fact has told her about the incident on 23.5.2001. In
the facts and circumstances of the present case, it is, therefore,
difficult to hold that threats were given to witness Sitaram by
appellant Ganesh not to tell the incident to the people at large
were not all that serious, otherwise he would not have told the
incident till his statement was recorded by the police on
26.5.2001. Similarly, the inordinate and unexplained delay
caused in recording the statement of Sitaram, in our considered
view, in the instant case, is fatal to prosecution and renders the
testimony of this witness unreliable and untrustworthy.
IN THE HIGH COURT OF JUDICATURE AT BOMBAY,
NAGPUR BENCH : NAGPUR
CRIMINAL APPEAL NO.98 OF 2003
  Ganesh s/o. Godruji Uikey,

 // VERSUS //
State of Maharashtra,

 Date of pronouncing the Judgment : 21.8.2007.
Citation;2007 ALLMR(CRI)3076
 CORAM : D.D.Sinha and
 B.P.Dharmadhikari, JJ.
Citation;2007 ALLMR(CRI)3076

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What is duty of court while recording contradiction in statement of witness?

Before parting with the matter, at this stage it is necessary to take note of the repeated mistakes those are being committed by the trial courts while recording evidence and more particularly while recording the contradictions in statements of witnesses. In the case in hand, the learned Public Prosecutor had brought to our notice that the trial Court in deposition of prosecutrix has noted that the statement of the prosecutrix to the effect, "In my complaint to the police I have stated that the penis of the accused went inside my vagina and I got pains", to be a contradiction on being confronted with her complaint. However, on perusal of the First Information Report (Ex. A) it is apparent that the prosecutrix had clearly stated therein that, "He also slapped me and slept on my stomach and removing his chaddi put his penis in my vagina". The statements in the First Information Report, therefore, clearly disclosed that the complainant had, in no uncertain words, stated the fact of insertion of the penis of the accused in the vagina of the complainant. As already observed above, the trial Court was dealing with a matter in relation to offence punishable under section 376 of the Indian Penal Code and the offence was of a rape on a minor girl. Being so, what was relevant for the prosecution was to establish the penetration of the penis of the accused in the vagina of the prosecutrix. Degree and depth of the penetration was immaterial. The painful effect of such entry was totally irrelevant to prove the charge of rape against the accused. Merely because in the course of her examination-in-chief the complainant had made grievance about the pains suffered by her on account of sexual assault by the accused, and that there was no mention about pains suffered by the prosecutrix in the First Information Report that by itself cannot give rise to any contradiction, more particularly considering the point being thoroughly irrelevant for the decision in the matter. That apart, while recording contradiction it is the duty of the Court to verify the former statement and to compare the same with the statement made before the Court to ascertain whether the two statements are really contradictory to each other. A mere statement of additional fact in the course of evidence cannot amount to contradiction by itself unless the same is material and relevant in the facts and circumstances of the case and for the decision in the matter. In this regard, we are reminded of the following observations of the Apex Court in Tahsildar's case (supra) :

"Contradict according to the Oxford Dictionary meant to affirm to the contrary. Section 145 of the Evidence Act indicates the manner in which contradiction is brought out. The cross-examining Counsel shall put the part or parts of the statement which affirms the contrary to what is stated in evidence. This indicates that there is something in writing which can be set against another statement made in evidence. If the statement before the police officer-in the sense we have indicated-and the statement in the evidence before the Court are so inconsistent or irreconcilable with each other that both of them cannot co-exist, it may be said that one contradicts the other."

Bombay High Court

Siddharth S/O Atchutrao Sawant vs State (Through Public ... on 20 January, 2000

Equivalent citations: 2000 (5) BomCR 673, 2000 BomCR Cri, 2000 (3) MhLj 46

Bench: B Srikrishna, R Khandeparkar

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Value of statement recorded by police u/s 162 of crpc when said witness is dead

  We have analysed the statement of the deceased Kalu made to the police under Section 161 Cr.P.C. We do not find that the statement of the deceased was in regard to the cause of his death, or as to any of the circumstances of the transaction which resulted in his death. The statement is in regard to the accused's involvement in the abduction of a boy and has no remote connection or reference to the death of the deceased and thus would not be admissible under Section 32 of the Evidence Act. The statement recorded by the police although could be proved as there would not be any bar under Section 162 Cr.P.C. for proof of such statement, but it would not be admissible under Section 32 of the Evidence Act, and thus it could not have been relied upon by the prosecution to prove the motive for commission of the crime by the accused appellant.

Supreme Court of India

Vinay D. Nagar vs State Of Rajasthan on 3 March, 2008

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What is object of recording statement of witness U/S 164 of CRPC?

 So far as the statement of witnesses recorded under Section 164 is concerned, the object is two fold; in the first place, to deter the witness from changing his stand by denying the contents of his previously recorded statement, and secondly, to tide over immunity from prosecution by the witness under Section 164. A proposition to the effect that if a statement of a witness is recorded under Section 164, his evidence in Court should be discarded, is not at all warranted. (Vide: Jogendra Nahak & Ors. v. State of Orissa & Ors., AIR 1999 SC 2565; and Assistant Collector of Central Excise, Rajamundry v. Duncan Agro Industries Ltd. & Ors., AIR 2000 SC 2901).

16. Section 157 of the Evidence Act makes it clear that a statement recorded under Section 164 Cr.P.C., can be relied upon for the purpose of corroborating statements made by witnesses in the Committal Court or even to contradict the same. As the defence had no opportunity to cross-examine the witnesses whose statements are recorded under Section 164 Cr.P.C., such statements cannot be treated as substantive evidence.

Supreme Court of India

R. Shaji vs State Of Kerala on 4 February, 2013

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Whether Magistrate should record statements of witnesses U/S164 of CRPC not sponsored by police?

There can be no doubt that a confession of the accused can be recorded by a magistrate. An accused is a definite person against whom there would be an accusation and the magistrate can ascertain whether he is in fact an accused person. Such a confession can be used against the maker thereof. If it is a confessional statement, the prosecution has to rely on it against the accused. But that cannot be said of a person who is not an accused. No such person can straightway go to a magistrate and require him to record a statement which he proposes to make.
Thus, on a consideration of various aspects, we are disinclined to interpret Section 164(1) of the Code as empowering a magistrate to record the statement of a person unsponsored by the investigating agency. The High Court has rightly disallowed the statements of the four appellants to remain on record in this case. Of course, the said course will be without prejudice to their evidence being adduced during trial, if any of the parties requires it.

Supreme Court of India

Jogendra Nahak & Ors vs State Of Orissa & Ors on 4 August, 1999

Author: Thomas

Bench: U.C.Banerjee, K.T.Thomas, D.P.Mohapatro

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Whether Advocate for accused can be asked to surrender copy of statement of witnesses scribed by him?

In the instant case the Magistrate was fully justified in not compelling the lawyer to surrender his register which contained a part of the privileged communication and even if the lawyer had taken down the evidence in extenso for the limited purpose of using it to defend the accused or cross- examine the witnesses, he could not be prevented from doing so, nor does section 14 contemplate or envisage such a course of action
If it is held that section 14, by using the word 'publication' deprives an accused of getting any copies of the statement of witnesses or of the judgment under section 548 of the Code of Criminal Procedure or Criminal Rules of Practice framed by the High Court then it would be difficult to uphold the constitutional validity of section 14 because in that event the procedure would become extremely unreasonable, harsh and prejudicial to the accused as a result of which the case would have been tried according to a procedure which was not in consonance with the provisions of article 21 of the Constitution. [672G-H] The apprehension that if the accused was allowed access to copies of statements recorded by the police or the Magistrate it would amount to publication, is not well founded. Under the provisions of section 5 of the Act, any person who is found in possession or control of any document or information and makes it public would also be deemed to have committed an offence under that section and would be prosecuted and liable to a heavy penalty. This prohibits even the lawyers from disclosing the evidence outside the Court.

Supreme Court of India

Superintendent & Remembrancer Of ... vs Satyen Bhowmick And Ors on 15 January, 1981

Equivalent citations: 1981 AIR 917, 1981 SCR (2) 661

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Whether statement of witness recorded under s.164 of crpc is substantive evidence?

The learned Judges discussed in great detail the statements made by Haliman and Mahabir under Section 164 and gave reasons for accepting the facts, or most of the facts, deposed to in those statements, in preference to the evidence given by the witnesses in Court, which in no way helped the prosecution. This was an improper use of such statements. A statement under Section 164 can be used to cross-examine the person who made it, and the result may be to show that the evidence of the witness is false. But that does not establish that what he stated out of Court under Section 164 is true.

13. The Apex Court in the decision ) in

paragraph 8 has observed that a statement under Section 164 of the Code of Criminal Procedure is not substantive evidence. It can be used to corroborate the statement of a witness. It can be used to contradict a witness.

Bombay High Court

Audumbar Digambar Jagdane And ... vs State Of Maharashtra on 14 August, 1998

Equivalent citations: 1999 CriLJ 1936

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