Law Web: Under which circumstances can a written statement given by witnesses to investigating officer be treated as his statement U/S 161 of CRPC?

In present case, I.O. has visited place of witnesses Smt.

Manju Rani and Talat Zameer who handed over their written

statements which were transcribed by I.O. in case diary in

their presence as well as original statements were made part of

case diary also. I.O. asked few questions to witnesses and

answers thereof were also reduced into writing in case diary,

therefore, only lacuna, if exists, was that witnesses have not

mentioned their statements orally i.e. stated in their own voice.

{Para 7}

8. The purpose of statements made under Section 161

Cr.P.C. is to investigate an occurrence to find out culprits. So

far as evidentary value of these statements is concerned, it

would only for purpose of contradiction, if any, committed by

said witness during his testimony in trial. Other than it, it has

no evidentary value.

9. Word “orally” also includes a statement recorded by

audio video also. Purpose of ‘to examine orally’ is to ensure

that I.O. may record whatever is said by witness to him or

relevant part of it and which has to be reduced into writing by

him to avoid any kind of coercion, misrepresentation or

mischief. A written statement send by post or deliver by

another person may not fall under ‘to examine orally’ but a

written statement submitted by witness himself to I.O. and I.O.

has assured its genuineness and same, if reduced in writing,

shall be a statement duly recorded under Section 161 Cr.P.C.

10. The word ‘may’ used in Section 161 Cr.P.C. gives

discretion to police officers to examine orally any person as

well as may reduce into writing any statement made to him,

therefore, he has discretion not to reduce into writing the

entire statement made to him or he may reduce into writing

only gist of statement. Sole object of statement under Section

161 Cr.P.C. is to investigate allegations and to prepare case

diary for purpose of consideration by Court at stage of

cognizance and summon as well as use to show contradictions

during trial.

11. In view of above discussion, there is no illegality in

taking a written statement of a witness under Section 161

Cr.P.C., when it was reduced in recording in case diary in

presence of witnesses as well as I.O. has made questions also

which are also reduced in writing along with answers. The I.O.

has taken sufficient precautions to ensure it to be a written

statement of witnesses only.

ALLAHABAD HIGH COURT

Case :- APPLICATION U/S 482 No. - 23696 of 2022

Applicant :- Faisal Ashraf

Opposite Party :- State Of U.P. And 2 Others

Author: Hon'ble Saurabh Shyam Shamshery,J.

Order Date -: December 22, 2022

1. Sri G.S. Chaturvedi, learned Senior Advocate assisted by

Sri Man Singh for applicant while pressing prayer to quash

cognizance order dated 09.06.2020 in Criminal Case No. 9281

of 2020 whereby Court of Chief Judicial Magistrate, Gautam

Buddh Nagar took cognizance of offence under Sections 504

and 506 I.P.C. on charge sheet dated 14.02.2020 submitted in

Case Crime No. 551 of 2018 (State vs. Faisal Ashraf) Police

Station- Noida Sector-20, District- Gautam Buddh Nagar, as

well as impugned summoning order dated 20.06.2022 whereby

Sessions Judge, Gautam Budh Nagar has dismissed criminal

revision no. 108 of 2022 (Faizal Ashraf vs. State of U.P. and

another) mentioned only on a ground that charge sheet was

submitted only on basis of written statements of witnesses

which cannot be considered to be a statement recorded under

Section 161 Cr.P.C. which mandatory requires that investigating

officer will examine oral in person supposed to be acquainted

with facts and circumstances of the case and police officers will

adduce in writing any statement made to him in course of

examination which may also include statement recorded by

audio and video electronic means, therefore, entire

investigation is contrary to procedure prescribed in Code of

Criminal Procedure and as such charge sheet becomes illegal.

2. Learned Senior Advocate has placed reliance on State of

U.P. vs. Singhara Singh and others, AIR 1964 SC 358 of which

relevant paragraphs no. 7 and 8 are quoted hereinafter -:

“7. In Nazir Ahmed case [LR 63 IA 372] the Judicial

Committee observed that the principle applied

in Taylorv. Taylor [(1875) 1 Ch D 426, 431] to a court,

namely, that where a power is given to do a certain thing

in a certain way, the thing must be done in that way or not

at all and that other methods of performance are necessarily

forbidden, applied to judicial officers making a record under

Section 164 and, therefore, held that the Magistrate could

not give oral evidence of the confession made to him which

he had purported to record under Section 164 of the Code.

It was said that otherwise all the precautions and safeguards

laid down in Sections 164 and 364, both of which had to be

read together, would become of such trifling value as to be

almost idle and that “it would be an unnatural construction

to hold that any other procedure was permitted than that

which is laid down with such minute particularity in the

sections themselves”.

8. The rule adopted in Taylor v. Taylor [(1875) 1 Ch D 426,

431] is well recognised and is founded on sound principle.

Its result is that if a statute has conferred a power to do an

act and has laid down the method in which that power has

to be exercised, it necessarily prohibits the doing of the act

in any other manner than that which has been prescribed.

The principle behind the rule is that if this were not so, the

statutory provision might as well not have been enacted. A

Magistrate, therefore, cannot in the course of investigation

record a confession except in the manner laid down in

Section 164. The power to record the confession had

obviously been given so that the confession might be proved

by the record of it made in the manner laid down. If proof

of the confession by other means was permissible, the whole

provision of Section 164 including the safeguards contained

in it for the protection of accused persons would be

rendered nugatory. The section, therefore, by conferring on

Magistrates the power to record statements or confessions,

by necessary implication, prohibited a Magistrate from

giving oral evidence of the statements or confessions made

to him.”

3. He also placed reliance upon a paragraph of judgment

passed by Supreme Court in Noor Mohammad vs. Khurram

Pasha, (2022) 9 SCC 23 which reiterates that “It is a normal

rule of construction that when a statute vests certain power in

an authority to be exercised in a particular manner then the

said authority has to exercise it only in the manner provided

in the statute itself. If that be so, since the Commission cannot

exercise the power of relaxation found in Section 119(2)(a) in

the manner provided therein it cannot invoke that power under

Section 119(2)(a) to exercise the same in its judicial

proceedings by following a procedure contrary to that provided

in sub-section (2) of Section 119.”.

4. The above submissions have been opposed by Sri Mohit

Singh, learned counsel for opposite party No.2 that witness has

given his written statement before I.O., however, she was

further examined by I.O. by way of asking relevant questions

also as well as that there is no specific bar that examination

under Section 161 Cr.P.C. has to be oral only and not in

written form. Sri Deepak Kapoor, learned A.G.A. has also

supported argument advanced by learned counsel for opposite

party No. 2.

5. Heard learned counsel for parties and perused record.

6. Before adverting to rival submissions, it will be relevant

to quote relevant Section 161 Cr.P.C.

“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.”

7. In present case, I.O. has visited place of witnesses Smt.