However, when any witness is called for the prosecution in such inquiry or trial whose statement has been reduced into writing as aforesaid, any part of his statement, if duly proved, may be used by the accused, and with the permission of the Court, by the prosecution, to contradict such witness in the manner provided by Section 145 of the Indian Evidence Act, 1872; and when any part of such statement is so used, any part thereof may also be used in the re-examination of such witness, but for the purpose only of explaining any matter referred to in his cross-examination.
As per sub-section (2) of Section 162 of the Code, nothing in Section 162 of the Code shall be deemed to apply to any statement falling within the provisions of clause (1) of Section 32 of the Indian Evidence Act, 1872 or to affect the provisions of Section 27 of the Indian Evidence Act, 1872.
The explanation to Section 162 of the Code provides that an omission to state a fact or circumstance in the statement referred to in sub-section (1) may amount to contradiction if the same appears to be significant and otherwise relevant having regard to the context in which such omission occurs and whether any omission amounts to a contradiction in the particular context shall be a question of fact.
It is only a statement made in the course of an investigation that is prohibited from being used as evidence. The word ‘statement’ means narration addressed to a public officer by some other person orally or in writing. It includes a confession made to a police officer in the course of an investigation and any other statement of the accused person. It does not include a statement made to a third person even in the presence of a police officer.
The words “in course of’ import that the statement must be made as a step in a pending investigation to be used in that investigation and do not refer to the period of time between beginning and end of investigation.
The phrase ‘in the course of an investigation’ means that the statement has to be made not only after the investigation has started, but as a step in, or in the conscious prosecution of, the investigation itself.
List of stolen articles, search list, inquest report, map, identification of persons, identification of articles, identification of places, conduct, tape-recording are not considered as statements. Customs officer, Excise officer, Forest officer and officer of Railway Protection Force are not police officers.
Thus, the bar or prohibition against the use of a statement made before police officer extends to:
(1) All statements—
(a) Confessional or otherwise;
(b) Whether reduced into writing or not.
(2) By whomsoever made:
(a) By any person whether accused or not;
(b) The person making the statement; but—
(i) The statement must be made to a police officer;
(ii) Must be made in the course of an investigation under Chapter XII of the Code of Criminal Procedure.
A statement recorded by the police during the investigation is not at all admissible in evidence and the proper procedure is to confront the witness with contradictions when they are examined and then as the investigating officer regarding those contradictions. Even a statement of a witness recorded by the investigators during the inquest under Section 174 of the Code of Criminal Procedure would be within the inhibition of Section 162.
A statement recorded by the police in the course of investigation can be used in a trial if the person making the statement is examined as a prosecution witness and it cannot be used for any purpose whatsoever if the person making the same is examined as a defence witness.
The statement can be used for the purpose of contradicting such (prosecution) witness in the manner provided by Section 145 of the Evidence Act. The prosecution also can now, with the permission of the Court, use such statements to contradict witnesses or to confront hostile witnesses. Such statements can, however, in no case be used for the purpose of corroboration or as substantive evidence.
A statement made before a police officer during the course of investigation cannot be used for any purpose whatsoever, except when it attracts the provisions of Section 27 or Section 32(1) of the Evidence Act.
If, however, such a statement is made by a witness examined by the prosecution, it may be used by the accused to contradict such a witness and with the permission of the Court, by the prosecution in accordance with Section 145 of the Evidence Act.
If any part of the previous statement is used for contradiction, any part of the statement can be used in the re-examination of the witness for the only purpose of explaining any matter referred to in his cross-examination.
The expression ‘previous statement’ constitutes the entirety of the facts stated by a witness when he was examined on different dates by the same investigating officer or different investigating officers during the course of investigation.
‘Any part of such statement’ which has been reduced to writing may in certain limited circumstances be used to contradict the witness who made it. The limitations are:
(i) Only the statement of a prosecution witness can be used;
(ii) Only if it has been reduced to writing;
(iii) Any part of the statement recorded can be used; such part must be duly proved;
(iv) It must be a contradiction of the evidence of the witness in Courts;
(v) It can be used only after the attention of the witness has been drawn to it or to those parts of it which it is intended to use for the purpose of contradiction.
The restrictions on the use of previous statements of witnesses imposed by Section 162 of the Code are confined in their scope to the use by the parties to the proceedings of such statement. Therefore, the Court while examining a person as a Court witness under Section 311 of the Code or asking any question of any witness under Section 165 of the Evidence Act, may make use of the previous statement of such a witness and the restrictions put by Section 162 of the Code on the use of previous statements are not applicable in such a case.
The bar created by Section 162 has no application in a proceeding under Article 32 or 226 of the Constitution or in a civil proceeding and a statement made before a police officer in the course of investigation can be used as evidence in such a proceeding provided it is otherwise relevant under the Evidence Act.
A statement made before police officer in course of investigation cannot be used for contradicting a defence witness or a court witness or for corroborating the statement, made by a prosecution witness in the Court.
Section 162 forbids the use of police statements of prosecution witnesses for comparing them with one another. No inference can be drawn against the veracity of the witnesses because of similarity of language in statements relating to the same incident.
A material contradiction between Court version of a witness and his previous statement made to the police, merits careful consideration in determining whether the witness is truthful and reliance could be placed on his evidence.
The reason for the prohibition of the use of the statements made to the police during the course of the investigation for the purpose of corroboration is that the police cannot be trusted for recording the statements correctly and as they are often taken down in a haphazard manner in the midst of a crowd and confusion.
If a person whose statement is recorded by the police in the course of the investigation is called as a defence witness, his previous statement before the police cannot be used for contradicting him because it would be improper to allow a witness to be contradicted by a record prepared by the opposite party.
The contents of panchanamas would not come within the ban under Section 162 of the Code and such previous statements could be legitimately used for corroboration under Section 157 of the Evidence Act.
Omissions are bound to be there but only those omissions in the police statement of a prosecution witness can be used for the purpose of contradiction as can be deemed by necessary implication to be included in the express recorded statement, No other omission can be permitted to be used as a contradiction, however important it might be.
Section 162(2) of the Code of Criminal Procedure provides that the restrictions imposed on the use of the statements recorded by the police in course of the investigation shall not apply in respect of the statements falling under Section 32(1) of the Evidence Act, i.e., dying declarations and in respect of statements falling under Section 27 of the Evidence Act.
The provisions of Section 162(2) of the Code of Criminal Procedure in so far as they are related to Section 27 of the Evidence Act, do not offend against Article 14 of the Constitution of India.
The distinction between persons in custody and persons not in custody in the context of admissibility of statements made by them concerning the offence charged is a real distinction between the two classes and the distinct rules about admissibility of statements made by them are not hit by Article 14 of the Constitution.
Evidentiary value of statements made during the period of investigation but not during the course of investigation:
The restrictions imposed on the use of statements before police officer applicable only to such statements as are made to the police officer during the course of investigation. The words ‘in the course of’ imply that the statement must be made as a step in a pending investigation.
Any other statement, though made during the time investigations were going on, is not hit by the prohibitory rule of Section 162 of the Code of Criminal Procedure. Therefore, such a statement can be used for corroborating or contradicting purposes according to the normal rules of evidence contained in Sections 157 and 145 of the Evidence Act.
Where a person who was assaulted sent a telegram to the police, and the police inspector went to the place and recorded a statement from the complainant and this statement is not considered as a statement to the police officer in the course of an investigation as the investigating officer obtained the statement of a person but not the investigating officer recorded the statement.
In Baleshwar Rai v. State of Bihar, it has been held that it was admissible as an admission as to the motive of the accused under Section 21 of the Evidence Act, when an anonymous letter was written by the accused to the police officer complaining about the act of a Chowkidar, who was ultimately murdered by the accused.