The only use that can be made of such a statement is that if any witness is called for the prosecution in such an inquiry or trial, any part of his statement, if duly proved, may be used by the accused, and with the permission of the Court, also by Prosecution, to contradict such witness as provided by S. 145 of the Indian Evidence Act.
In a case decided by the Karnataka High Court, a statement was recorded when the Police Officer had gone out to investigate the cause of some commotion outside and to take suitable steps. It was held that the statement was not hit by S. 162, as it was not recorded during the course of the investigation. (M.P. Jairaj and others v. State of Karnataka, 1980 Cri. L.J. NOC 13)
It is well-known that Police Officers do not take down statements made to them verbatim. This often results in a record containing what the Police Officer wishes the witness to say, and not what the witness actually stated. The object underlying S. 162 is thus wholesome, namely to protect the accused both against over-zealous Police Officers and untruthful witnesses.
S. 162 strikes an equitable via media. On the one hand, it enacts an absolute bar against statements made before a Police Officer being used for any purpose whatsoever, and on the other, it enables the accused to rely on it for the limited purpose of contradicting a witness in the manner provided in S. 145 of the Indian Evidence Act, by drawing his attention to parts of the statement intended for contradiction.
Such a statement cannot be used for corroboration of a prosecution or a defence witness. Nor can it be used for contradicting a defence or a court witness. In other words, there is a general bar against its use being made, subject to a limited exception (as above), which is in the interests of the accused. This being so, it is clear that the exception cannot override the general rule itself.
The Calcutta High Court has held that pointing out by finger, or a nod of assent in answer to a question, is as much a verbal statement as a statement by word of mouth. S. 162 does not limit itself to a statement of any particular kind. It covers all types of statements made to a Police Officer in the course of investigation. (Khabiruddin,—48 C.W.N. 356)
It has been held that any identification of stolen property in the presence of a Police Officer during an investigation is a statement made to a Police Officer during investigation, and hence, covered by S. 162. Evidence of such identification is, therefore, inadmissible, and the witness should not be allowed to depose to the fact that they had identified the stolen property in the presence of Police Officer. It is immaterial in such a case, whether the identification was at the Police Station or at some other place. (Khabiruddin, — 48 C.W.N. 356)
In one case where a Police Officer was in the inner room in which a tape-recorder was kept, and the mike was kept concealed in the outer room where the accused was having a conversation without knowing about the tape-recorder, it was held that the conversation was not hit by S. 162. [Yusufalli E. Nagree,—1967 3 S.C.R. 720)
In a case decided by the Supreme Court, the statement furnishing detailed particulars of the accused was recorded at the Police Station, long after the investigation had commenced, on receipt of telephonic information about the crime. In the circumstances, it was held that the statement was not a F.I.R., but one recorded during investigation. (Somappa Vamanappa Madar v. State of Mysore,—(1980) 1 S.S.C. 479)
Thus, it will be seen that S. 162 can be used for a three-fold purpose, viz.,—
(i) It may be used by the defence for contradicting the prosecution witness.
(ii) It may be used by the prosecution for contradicting the prosecution witness with the permission of the Court.
(iii) The witness whose statement is so used may be re-examined by way of an explanation, if necessary.
It is also to be noted that this section makes a reference to S. 145 of the Indian Evidence Act. Therefore, the provisions of that section have to be strictly complied with. The proper procedure would be to ask the witness whether he made that particular statement before the Police Officer.
If the witness answers in the affirmative, the previous statement need not be proved. If, however, the witness answers in the negative, or states that he does not remember having made any such statement, the person cross-examining must read out to the witness, the relevant portion in the record which is alleged to be contradictory to his statement in the Court, and give him an opportunity to reconcile the two, if he can. It is only after this is done, that the record of the previous statement becomes admissible in evidence for the purpose of contradicting the witness and can be proved in any manner permitted by law.
S. 163 then lays down that no Police Officer or any authority, can offer or make, or cause to be offered or made, any inducement, threat or promise as is referred to in S. 124 of the Indian Evidence Act. Similarly, no Police Officer or other person can prevent any person from making any statement which such person wishes to make of his own free will.
Thus, all oppression and trickery in regard to obtaining confessions are to be avoided by the Police, under pain of severe penalties, and the practice of employing private individuals to extract confessions from accused persons is equally prohibited.
In one case, a ziladar took the accused, a boy of 16, to the Police and told him: “You are a minor; you will be let off, if you tell the truth before the Police, just as you have done in our presence”. Thereupon, the Magistrate, before recording his confession, told him that he was not to allow any inducement to operate upon the mind in making the confession. It was held that such inducement would operate to defeat the confession made under S. 164, as it was not likely that the effect of the inducement had thereby been fully removed. (Faiz Ahmed,—38 Cr. L.J. 27)
The following have been held to be cases of inducements and threats:
(a) “I will get you released, if you speak the truth.”
(b) “You had better pay the money than go to jail, and it would be better for you to tell the truth.”
(c) “If you confess the truth, nothing will happen to you.”
(d) “If you speak the truth, we will speak to the constable and arrange.”
(e) “Tell me what you know about it; if you will not, I can do nothing for you, and I will send for the constable.”
On the other hand, it has been held that the following are only words of caution, and therefore do not amount to inducements or threats:
(i) “I know the whole thing.”
(ii) “Take care, we know more than what you think we know.”
(iii) Exhortation to speak the truth.
Under S. 164, any Metropolitan Magistrate or Judicial Magistrate can record any confession or statement made to him in the course of the investigation under this Chapter or under any other law in force, it being immaterial whether or not he has jurisdiction in the case. However, no confession can be recorded by any Police Officer on whom a Magistrate’s powers may have been conferred by any law.
Before recording any such confession, the Magistrate must 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. Further, the Magistrate can record any such confession only if he is satisfied, upon questioning the person concerned, that it is being made voluntarily.
The confession is to be recorded by the Magistrate and at the foot thereof, the Magistrate must make the following memorandum, namely:
“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, 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.