Can Written Statements Of Witnesses Be Considered To Be Statements Duly Recorded U/S 161 CrPC?: Allahabad HC Answers

Recently, the Allahabad Hih Court has explained as to when the written statements of the witnesses could be considered to be statements duly recorded under Section 161 of CrPC [examination of witnesses by police].

The bench of Justice Saurabh Shyam Shamshery observed that if the written statement has been submitted by the witness himself to the Investigating Officer and the IO assures its genuineness and same, if reduced in writing, shall be a statement duly recorded under Section 161 CrPC.

"...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 of 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," the Court remarked.

With this, the Court dismissed a Section 482 CrPC seeking to quash an order of the Chief Judicial Magistrate, Gautam Buddh Nagar taking cognizance of the chargesheet against the accused under Sections 504 and 506 I.P.C. as well as the chargesheet.

The petitioner's counsel argued that the charge sheet in the case 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 requires that investigating officer should examine oral in a person supposed to be acquainted with facts and circumstances of the case and police officers has to adduce in writing any statement made to him in course of examination which may also include statement recorded by audio and video electronic means.

In its order, the Court, at the outset, noted that during the investigation of the case, the I.O. had visited the place of witnesses, who handed over their written statements which were transcribed by the IO in the case diary in their presence, as well as original statements, were made part of the case diary also. The Court further noted that the IO had asked a few questions to witnesses and answers thereof were also reduced to writing in the case diary.

In view of this, the Court observed that the only lacuna, if existed, was that witnesses have not mentioned their statements orally i.e. stated in their own voice. 

Now, the Court perused Section 161 CrPC to note that its sole object is to investigate allegations and to prepare a case diary for purpose of consideration by the Court at the stage of cognizance and summon as well as use to show contradictions during the trial.

"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."

The Court further observed that the purpose of using the words 'to examine orally' is to ensure that I.O. may record whatever is said by witnesses 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.

The Court also noted that the provision gives discretion to police officers to examine orally any person as well as may reduce to writing any statement made to him, and therefore, the Court added, he has discretion not to reduce to writing the entire statement made to him or he may reduce into writing only gist of the statement.

In view of this, the Court observed that there would be 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. 

Consequently, the application was dismissed.

Case title - Faisal Ashraf vs. State Of U.P. And 2 Others [APPLICATION U/S 482 No. - 23696 of 2022]

Case Citation: 2022 LiveLaw (AB) 538

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