Allahabad High Court| No illegality in taking written statement of witness under Section 161 CrPC when reduced into writing in presence of witnesses as well as I.O.

Allahabad High Court


Allahabad High Court: In an application under Section 482 filed for quashing cognizance order in criminal case for offences under Sections 504 and 506 of the Penal Code, 1860, as well as summoning order, wherein the Sessions Judge, has dismissed criminal revision., Saurabh Shyam Shamshery, J. said that the investigating officer (‘I.O.') has taken sufficient precautions to ensure it to be a written statement of witnesses only, and held that, there is no illegality in taking a written statement of a witness under Section 161 CrPC, when it was reduced into recording in the case diary, in the presence of witnesses as well as I.O.

The applicant / accused has filed this application on a ground that, charge sheet was submitted based only on written statements of witnesses, which cannot be a statement recorded under Section 161 of Code of Criminal Procedure, 1973 (‘CrPC'), as it is mandatory that investigating officer examining in person should 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 CrPC and as such charge sheet becomes illegal.

The Court took note of Section 161 CrPC that provides for oral examination of a person by any IO, and said that in the present case, IO has visited place of witnesses who handed over their written statements, which were transcribed by IO in the case diary as well as original statements were made part of case diary. Further, the I.O. asked few questions to witness and the answers were also reduced into writing in case diary, therefore, the only lacuna, if exists, was that witnesses have not mentioned their statements orally i.e., stated in their own voice.

The Court said that the purpose of statements made under Section 161 CrPC is to investigate an occurrence to find culprits. As far as evidentiary value of these statements is concerned, it would only for purpose of contradiction, if any, committed by said witness during his testimony in trial, and other than this, it has no evidentiary value.

The Court said that the word “orally” also includes a statement recorded by audio video. Further, the purpose of ‘to examine orally' is to ensure that IO may record whatever is said by the witness to him or the relevant part of it and which must be reduced into writing by him to avoid any kind of coercion, misrepresentation or mischief.

Moreover, it said that the word ‘may' used in Section 161 CrPC 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 the gist of statement. As, the sole object of statement under Section 161 CrPC 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.

Thus, the Court rejected the application.

[Faisal Ashraf v. State of UP, 2022 SCC OnLine All 891, order dated 22-12-2022]

Advocates who appeared in this case :

Counsel for Applicant: – Advocate Sanjay Tiwari, Advocate Devi Prasad Tripathi

Counsel for Opposite Party: – Government Advocate Mohit Singh

*Apoorva Goel, Editorial Assistant has reported this brief.

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