Can a statement of suspect recorded at Pre- FIR stage be treated as the confession or statement U/S 160 of CRPC?

 However, the next question posed for the consideration of this Court is, whether to what extent such an enquiry is permissible and what would be the scope and ambit of such an enquiry. By the impugned notice, impugned before the High Court, and during the course of the ‘open enquiry’, the appellant has been called upon to give his statement and he has been called upon to carry along with the information on the points, which are referred to hereinabove for the purpose of recording his statement. The information sought on the aforesaid points is having a direct connection with the allegations made against the appellant, namely, accumulating assets disproportionate to his known sources of income. However, such a notice, while conducting the ‘open enquiry’, shall be restricted to facilitate the appellant to clarify regarding his assets and known sources of income. The same cannot be said to be a fishing or roving enquiry. Such a statement cannot be said to be a statement under Section 160 and/or the statement to be recorded during the course of investigation as per the Code of Criminal Procedure. Such a statement even cannot be used against the appellant during the course of trial. Statement of the appellant and the information so received during the course of discrete enquiry shall be only for the purpose to satisfy and find out whether an offence under Section 13(1)(e) of the PC Act, 1988 is disclosed. Such a statement cannot be said to be confessional in character, and as and when and/or if such a statement is considered to be confessional, in that case only, it can be said to be a statement which is self-incriminatory, which can be said to be impermissible in law.{Para 37}

38. At this stage, it is required to be noted that in the present case as such the appellant has produced the relevant documents of some of the properties owned by him and the appellant has joined the ‘open enquiry’. It also appears from the counter filed on behalf of the Anti-corruption Bureau that on the basis of the information given by the appellant, letters have been issued to various authorities/banks, seeking further and better particulars. Partial statement of the appellant has already been recorded. However, as observed hereinabove, such a statement/enquiry would be restricted only to ascertain whether a cognizable offence is disclosed or not. Such a statement cannot be said to be a confessional statement. After having been satisfied and after conclusion of the enquiry and on the basis of the material collected, if it is found that there is substance in the allegations against the appellant and it discloses a cognizable offence, FIR will be lodged and the investigating agency has to collect the evidence/further evidence to substantiate the allegations/charge of accumulating the assets disproportionate to his known sources of income. However, if during the enquiry at pre-registration of FIR stage, if the appellant satisfies on production of the materials produced relating to his known sources of income and the assets, in that case, no FIR will be lodged and if he is not able to clarify his assets, vis-à-vis, known sources of income, then the FIR will be lodged and he will be subjected to trial. Therefore, as such, such an enquiry would be to safeguard his interest also which may avoid further harassment to him.

39. In view of the above and for the reasons stated above, we see no reason to interfere with the impugned judgment and order passed by the High Court and we dismiss the appeal with the above observations and clarifications that the statement of the appellant on the points mentioned in the impugned notice would be only to satisfy whether a cognizable offence is disclosed or not and so as to enable the appellant to clarify the allegations made against him with respect to accumulation of assets disproportionate to his known sources of income and the same shall not be treated as a confessional statement.

 In the Supreme Court of India

(Before D.Y. Chandrachud and M.R. Shah, JJ.)

Charansingh Vs State of Maharashtra 

Criminal Appeal No. 363 of 2021 (Arising from S.L.P. (Criminal) No. 6764 of 2020)

Decided on March 24, 2021

Citation: 2021 SCC OnLine SC 251

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Whether court can suo moto make use of statements to police not proved in compliance with S 145 of Evidence Act?

 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 hereinafter 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 of the Indian Evidence Act, 1872 (1 of 1872), or to affect the provisions of section 27 of that Act.

Explanation.- An omission to state a fact or circumstance in the statement referred to in sub-section (1) may amount to contradiction if the same appears to be significant and otherwise relevant having regard to the context in which such omission occurs and whether any omission amounts to a contradiction in the particular context shall be a question of fact.

15. Section 162 Cr.P.C. bars use of statement of witnesses recorded by the police except for the limited purpose of contradiction of such witnesses as indicated there. The statement made by a witness before the police under Section 161(1) Cr.P.C. can be used only for the purpose of contradicting such witness on what he has stated at the trial as laid down in the proviso toSection 162 (1) Cr.P.C. The statements under Section 161 Cr.P.C. recorded during the investigation are not substantive pieces of evidence but can be used primarily for the limited purpose:- (i) of contradicting such witness by an accused under Section 145 of Evidence Act;

(ii) the contradiction of such witness also by the prosecution but with the leave of the Court and (iii) the re-examination of the witness if necessary.

16. Court cannot suo moto make use of statements to police not proved and ask question with reference to them which are inconsistent with the testimony of the witness in the court. The words in Section 162 Cr.P.C. “if duly proved” clearly show that the record of the statement of witnesses cannot be admitted in evidence straightway nor can be looked into but they must be duly proved for the purpose of contradiction by eliciting admission from the witness during cross-examination and also during the cross-examination of the investigating officer. Statement before the investigating officer can be used for contradiction but only after strict compliance with Section 145 of Evidence Act that is by drawing attention to the parts intended for contradiction.

17. Section 145 of the Evidence Act reads as under:

145. Cross-examination as to previous statements in writing.- A witness may be cross-examined as to previous statements made by him in writing or reduced into writing, and relevant to matters in question, without such writing being shown to him, or being proved; but, if it is intended to contradict him by the writing, his attention must, before the writing can be proved, be called to those parts of it which are to be used for the purpose of contradicting him.

18. Under Section 145 of the Evidence Act when it is intended to contradict the witness by his previous statement reduced into writing, the attention of such witness must be called to those parts of it which are to be used for the purpose of contradicting him, before the writing can be used. While recording the deposition of a witness, it becomes the duty of the trial court to ensure that the part of the police statement with which it is intended to contradict the witness is brought to the notice of the witness in his cross-examination. The attention of witness is drawn to that part and this must reflect in his cross-examination by reproducing it. If the witness admits the part intended to contradict him, it stands proved and there is no need to further proof of contradiction and it will be read while appreciating the evidence. If he denies having made that part of the statement, his attention must be drawn to that statement and must be mentioned in the deposition. By this process the contradiction is merely brought on record, but it is yet to be proved. Thereafter when investigating officer is examined in the court, his attention should be drawn to the passage marked for the purpose of contradiction, it will then be proved in the deposition of the investigating officer who again by referring to the police statement will depose about the witness having made that statement. The process again involves referring to the police statement and culling out that part with which the maker of the statement was intended to be contradicted. If the witness was not confronted with that part of the statement with which the defence wanted to contradict him, then the court cannot suo moto make use of statements to police not proved in compliance with Section 145 of Evidence Act that is, by drawing attention to the parts intended for contradiction.

Supreme Court of India

V.K.Mishra & Anr vs State Of Uttarakhand & Anr on 28 July, 2015

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Whether the court should permit questioning of investigating officer regarding the statement of a person not examined before the court?

It is, therefore, abundantly clear that when a statement is recorded by the Police Officer in the course of investigation, the use of such a statement is to be made strictly in terms of the abovementioned provisions and not otherwise. This evidently means that a statement recorded in the course of investigation by police cannot be a subject matter of cross-examination of the Investigating Officer unless the person has been examined as prosecution witness before the Court and his statement is brought in evidence for the purpose of contradicting such witness or to point out the omission in his former statement before the police. Undoubtedly, the provisions are not applicable as far as they relate to the matter under section 32(1) and section 27 of the Indian Evidence Act. However, one cannot forget that the statements recorded under section 161 of the Code of Criminal Procedure cannot be used as substantive evidence either in favour of or against the accused. Such statements can be used only to test credibility of prosecution witnesses. What was sought to be done before the trial Court in the case in hand was to question the Investigating Officer about a statement made by a witness to the Investigating Officer whose statement had been recorded by the said officer but neither was the said person examined by the prosecution as the witness in the case nor did the Investigating Officer had brought on record anything before the trial Court regarding the statement made by the said witness during the course of the investigation. It is not permissible to question the Investigating Officer regarding some statements made by some person in the course of investigation except when such a person has been examined as prosecution witness before the Court and has made a statement contradictory to the one which was made by him to the Investigating Officer, or has made some improvement over the statement before the police.

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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Whether statement made to police during investigation is admissible in civil proceeding?

Section 162 bars the use of any statement made before a police officer in the course of an investigation under Chapter XII, whether recorded in a police diary or otherwise, but, by the express terms of the Section, this bar is applicable only where such statement is sought to be used "at any inquiry or trial in respect of any offence under investigation at the time when such statement was made." If the statement made before the police officer in the course of an investigation under chapter XII is sought to be used in any proceeding other than an inquiry or trial or even at an inquiry or trial but in respect of an offence other than that which was under investigation at the time when such statement was made, the bar of section 162 would not be attracted. [152 A-C]

7:2. Section 162 has been enacted for benefit of the accused and to protect him against overzealous police officers and untruthful witnesses. But, this protection is unnecessary in any proceeding other than an inquiry or trial in respect of the offence under investigation and hence the bar created by the section is a limited bar. It has no application in a civil proceeding or in a proceeding under Article 32 or 226 of the Constitution and a statement made before a police officer in the course of investigation can be used as evidence in such proceeding, provided it is otherwise relevant under the Indian Evidence Act.

Supreme Court of India

Khatri & Ors. Etc vs State Of Bihar & Ors on 10 March, 1981

Equivalent citations: 1981 AIR 1068, 1981 SCR (3) 145

Bench: Bhagwati, P.N.

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