- 160, S. 161, S.162, S. 163, S. 161 A, S. 164 of CrPC
- 24, S.27 of the IEA
- 160 deals with the power of the police to require attendance of witnesses.
Examination of Witnesses by the Police
- 161 and S.162 deal with the oral examination of witnesses by the police, the record to be made of the statements and their use subsequently.
- 161 aims at obtaining evidence which may later be produced at trial. In case of a trial of a warrant case or before a sessions court, a charge may be framed against the accused on the basis of such statements.
- A statement of a person recorded by the police may be used for contradiction under S.145 of the Evidence Act for purposes of contradiction if the person is called as a prosecution witness.
- “Any person” in 161(1) includes any person who may be accused of the crime subsequently. “Any person supposed to be acquainted with the facts and circumstances of the case” includes the accused.
- 161(2) and Article 20(3) cover the same area and the accused is protected by the right against self-incrimination in light of the requirements of S.161(2).
- 161(3) gives the police a wide discretion to decide whether or not to record statements. If he does so, he must furnish a copy to each person whose statements he records.
- 162(1) says that there is no requirement for the person giving the statement to sign it and S.161(3) doesn’t require the same.
- Delays in the taking of statements by the police could render the evidence unreliable if there is a suggestion of unfair practice by the investigating agency.
- Recording of one joint statement of all witnesses is in contravention of S.161(3). It will not make their statements inadmissible but just affect the weight of the evidence.\
- Non-compliance of S.161(3) will not vitiate the entire trial unless it causes prejudice to the accused in his defence and that resulted in a failure of justice.
- “Statement” includes all written, oral statements and signs and gestures. S.161(3) and S.162 mean all that is stated by a witness to the police during the course of the investigation.
Evidentiary Value of Statements made to the Police
- A statement recorded by the police officer during investigation is not given on oath or tested by cross examination. According to the law of evidence, this is not evidence of facts stated and so cannot be substantive evidence.
- 162 bans the use of the statements collected by the police in the course of the investigation for corroboration. However, the proviso says that if the person giving the statement is called as a witness in court, the statement can be used to corroborate his testimony.
- The expression “statement or any part of a statement” in S.162 is not confined to a single statement given by a witness to a police officer but includes the statements given by him/her on different dates at different stages to the same or different IO.
- Evidence of a witness in court becomes inadmissible if it is established that the statement was signed by the witness at the instance of the police officer.
- Defence witnesses cannot be contradicted using such statements. The proviso only applies to prosecution witnesses.
- The bar in S.162 applies only to “an inquiry or trial in respect of any offence under investigation at the time when such statement was made”.
Inducement or Pressure
- 163 prohibits the offering of inducement to witnesses to obtain statements.
- 164(4) overrides this.
Kathi Kalu said that self incrimination is the conveying information based upon the personal knowledge of the given and does not include the mere mechanical process of producing documents in court which do not contain’ any statement of the accused based on his personal knowledge;
Aghnoo Nagesia v. State of Bihar
Facts:
The appellant was tried for murder. The principal evidence against him consisted of a first information report containing a full confession of the crime. The appellant was convicted under s. 302 Indian Penal Code by the trial court and the High Court upheld the conviction, by special leave he appealed to the Supreme Court.
The question before the court was whether the whole confessional statement in the first information report was banned by s. 25 of the Evidence Act or only those portions of it were barred which related to the actual commission of the crime.
Decision:
A confession may consist of several parts and may reveal not only the actual commission of the crime but also the motive, the preparation, the provocation etc. If the confession is tainted the taint attaches to the whole statement of the accused. [140 B-C]. If a statement contains an admission of an offence, not only that admission but also every other admission of an incriminating fact contained in the statement is part of the confession. Little substance and content would be left in ss. 24, 25 and 26 if proof of admissions of incriminating facts in confessional statement is permitted.
The appellant’s first information report was a confessional statement to a police officer and as such no part of it could be admitted into evidence on account of the ban in s. 25 except in so far as the ban was lifted by s. 27 and except in so far as it identified the appellant is the maker of the report.
The custody may also mean constructive custody. Therefore, in the current case though the person was technically not in the custody of the police while filing the FIR, it was held that the statement was self-incriminatory.
M.P. Sharma v. Satish Chandra
Issue: Search and seizure of documents under ss. 94 and 96 of the Code of Criminal Procedure. Whether compelled production of items acquired under Section 94 and 96 is within the meaning of Art. 20(3)?
Decision: Held, that the provision for the search warrants under the first alternative of a. 96(1) of the Code of Criminal Procedure does not offend art. 19(1)(f) of the Constitution. A search and seizure is only a temporary interference with the right to hold the property searched and the articles seized. Statutory recognition in this behalf is a necessary and reasonable restriction and cannot per se be considered to be unconstitutional.
A compelled production of incriminating documents by a person against whom a First Information Report has been made is testimonial compulsion within the meaning of Article 20(3) of the Constitution. But a search and seizure of a document under the provisions of as Section 94 and 96 of the Code of Criminal Procedure is not a compelled production thereof within the meaning of Article 20 (3) and hence does not offend the said Article.
A power of search and seizure is, in any system of jurisprudence, an overriding power of the State for the protection of social security and that power is necessarily regulated by law. When the Constitution makers have thought fit not to subject such regulation to constitutional limitations by recognition of the fundamental right to privacy, analogous to the American Fourth Amendment, there is no justification for importing into it, a totally different fundamental right by some process of strained construction.
V.S. Kuttan pillai v. Ramakrishnan & anr.
Facts: A search warrant was issued by the magistrate in favor of the petitioner to search the office premises and seize the books, documents etc. described in the application. The office premises is the HDMP Sabha.
Issue: Whether the documents obtained by manner of search and seizure lead to self-incrimination of the individual? Whether the Sabha could be searched?
Decision: The court held that the allowing of the search in itself cannot be considered as an act of self-incrimination. The reason being that during the search one does not have to be a party to the search. It is a mere passive submission and not a compulsion on the person being searched. Therefore, the documents therein acquired cannot be said to be inadmissible.
Additionally, the Sabha can be searched as it is a public place within the ambit of Section 93(1)(c) .
Nandini Satpathy v. P. L. Dani
Holding:
The appellant shall undertake to answer all questions put to her which do not materially incriminate her in the pending or imminent investigations or prosecutions. If she claims immunity regarding any questions she will, without disclosing details, briefly state in which case or offence in the offing makes her reasonably apprehend self- incrimination by her refused answers. If, after the whole examination is over, the officer concerned reasonably regards any refusal to answer to be wilful violation under pretence of immunity from self-incrimination, he will be free to prosecute the alleged offender after studying the refusal to answer in the light of the principles earlier set out, Section 179 I.P.C. should not be unsheathed too promiscuously and teasingly to tense lay people into vague consternation and covert compulsion although the proper office of Section 179 I.P.C. is perfectly within the constitutional limits of Art. 20(3).
161(2) meaningfully uses the expression ‘expose himself to a criminal charge’. Obviously, these words mean, not only cases Where the person is already exposed to a criminal charge but also instances which Will imminently expose him to criminal charges. In Art. 20(3) the expression (accused of any offence’ must mean formally accused in present not in future-not even imminently as decisions now stand. The expression “to be witness against himself” means more than the court process, Any giving of evidence, any furnishing of information, if likely to have an incriminating impact ensures the description of being witness against himself. Not being limited to the forensic stage by express words in Art. 20(3) the expression must be construed to apply to every stage where furnishing of information and collection of materials takes place. That is to say, even the investigation at the police level is embraced by Art. 20(3).
The right to consult an advocate of his choice shall not be denied to any person who is arrested. This does not mean that persons who are not under arrest or custody can be denied that right. The spirit and sense of Art. 22(1) is that it is fundamental to the rule of law that the service of a lawyer shall be available for consultation to any accused person tinder circumstances of near-custodial interrogation. Moreover, the observance of the right against self-incrimination is best promoted by conceding to the accused the right to consult a legal practitioner of his choice. Lawyer’s presence is a constitutional claim in some circumstances in our country also, and, in the context of Art. 20(3), is an assurance of awareness and observance of the right to silence.
Murray v. UK
M was arrested after being found in a house in which an IRA informer, L, had been held captive. On being taken for police questioning M was refused access to a solicitor for 48 hours. M chose to remain silent during a number of police interviews, despite being warned that adverse inferences might be drawn at trial from his silence. He was convicted of aiding and abetting the false imprisonment of L and sentenced to eight years’ imprisonment. The trial judge exercised his discretion under the Criminal Evidence (Northern Ireland) Order 1988 Art.4 and Art.6 to draw adverse inferences from the fact that M refused to account for his presence at the house. When M’s appeal against conviction was dismissed he lodged an application with the European Commission of Human Rights who referred the case to the European Court of Human Rights.
Held, that (1) by 14 votes to five, an accused’s right to silence was not absolute in the sense that no adverse inferences could ever be drawn at trial from that silence. It was a matter for the court in every case to determine what weight should be given to the fact that an accused had chosen not to offer an explanation of the circumstances of his case and to determine whether there had been improper compulsion on the part of the authorities. Having regard to all the evidence in the instant case, it could not be concluded that the drawing of reasonable inferences infringed M’s rights under the European Convention on Human Rights 1950 Art.6(1) and Art.6(2) and (2) by 12 votes to seven, having regard to the scheme under the 1988 Order, it was imperative in the interests of fairness for an accused to have access to a lawyer at the initial stages of police questioning. The refusal of the police to grant M access to a solicitor during the first 48 hours of his detention was therefore in breach of Art.6(1) read with Art.6(3)(c).
State of Bombay v. Kathi Kalu
Issue:
Whether handwriting and fingerprints would amount to self-incrimination?
Decision:
Section 73, Evidence Act also contemplates the obtaining of specimen handwriting. If a person gives the specimen handwriting voluntarily ,it cannot be said that he was compelled to give it. If the police merely requests the accused, then it does not amount to compulsion, but if it directs the
“To be a witness” means imparting knowledge in respect of relevant fact, by means of oral statements or statements in writing, by a person who has personal knowledge of the facts to be communicated to a court or to a person holding an enquiry or investigation.
When an accused person is called upon by the Court or any other authority holding an investigation to give his finger impression or signature or a specimen of his handwriting, he is not giving any testimony of the nature of a ‘personal testimony’. The giving of a “personal testimony’ must depend upon his volition. He can make any kind of statement or may refuse to make any statement. But his finger impressions or his handwriting, in spite of efforts at concealing the true nature of it by dissimulation cannot change their intrinsic character. Thus, the giving of finger impressions or of specimen writing or of signatures by an accused person, though it may amount to furnishing evidence in the larger sense, is not included within the expression to be a witness’.
A specimen handwriting or signature or finger impressions by themselves are no testimony at all being wholly innocuous because they are unchangeable except in rare cases where the ridges of the fingers or the style of writing have been tampered with. They are only materials for comparison in order to lend assurance to the Court that its inference based on other pieces of evidence is reliable.They are neither oral nor documentary evidence but belong to the third category of material evidence which is outside the limit of ‘testimony’.
Smt. Selvi v. State of Karnataka
Polygraph test, narco-tests etc are considered to be self-incriminations. This is unless it is done voluntarily. Even then, it can be used only as directive evidence.
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