WITNESS STATEMENT MADE UNDER SECTION 161 CrPC IS NOT A

ADMISSIBLE EVIDENCE IN A PETITION FILE UNDER SECTION 482 CrPC:

The supreme court of India in the case of Rajeev kourav v/s Baisahab and ors
has ruled that the statement made by the witness to the police in the examination
of witness under section 161 CrPc is an inadmissible evidence for quashing the
criminal proceeding petition file in the High court under section 482 Crpc.

The Apex Court bench comprising of Justice L. Nageswara Rao and Justice Deepak
Gupta noted that the statement of the witnesses recorded under Section 161 of the
Code of Criminal Procedure is not admissible as evidence when the court is
examining a petition filed under Section 482 of the Code of Criminal Procedure. The
court held that the High Court erred in quashing the criminal proceedings by
scrutinizing the recorded witnesses’ statement under Section 161 Cr.P.C.

Examination of witness by police:

Section 161 of CrPC is a provision given in the criminal procedure code in which
police can examine any person orally as witness of the offence. Any person can be
examined as a witness to an offence by following officer;

1. By The Police officer should be investigating in charge or

2. By Any police officer acting on the requisition of the investigation officer and
he should be of such rank as may be prescribe by the state government by
general or special order for the purpose of examination.

The person who is to be examined by the police for the purpose of witness to the
offence is supposed to be acquainted with facts and circumstance of the case. The
police would be finding out the fact and circumstances of the case on examining by
asking question relating to the case.

The person who is to be examined is required to answer the entire question put
before it. However they are not bound to answer that question which would expose
him to criminal charge or to a penalty or forfeiture.

Any person here means it could be of Victim, Accuse or any other person who is
acquainted to the facts and circumstances. The accused has got right to remain
silent as he got ‘right against self incrimination’ as per S.161 (2) CrPC and Art.
20(3) of Indian Constiutuion. But if any other person as a witness examined by the
police does not give answers to the questions except the answer that would expose
him to criminal charge, penalty or forfeiture then he can be punishable u/s.179
IPC or if he gives false information he can be punished u/s.193 IPC.

The police may reduce in writing all those statement made to it while examination
of the persons and if reduce in writing then he shall make separate and true record
of the statement of each statement.

The statement made may b recorded in audio cum vedio electronic means.
Moreover statement made by women shall be recorded by a woman police officer or
any woman officer in the following alleged to have committed or attempted offence.

1. Section 354 IPC; Assault or criminal force to woman with intent to outrage
her modesty.
2. Section 354(A); Sexual harassment and punishment for sexual harassment.
3. Section 354(B); Assault or use of criminal force to woman with intent to
disrobe.
4. Section 354(C); Voyeurism.
5. Section 354D; Stalking.
6. Section 376; Punishment for rape.
7. Section 376(A); Punishment for causing death or resulting in persistent
vegetative state of victim.
8. Section 376(AB); Punishment for rape on woman under twelve years of age.
9. Section 376(B); Sexual intercourse by husband upon his wife during
separation.
10.Section 376(C); Sexual intercourse by a person in authority.
11. Section 376(D); Gang Rape.
12.Section 376(DA); Punishment for gang rape on woman under sixteen years
of age.
13.Section 376(DB); Punishment for gang rape on woman under twelve years of
age.
14.Section 367(E); Punishment for repeat offenders.
15.Section 509; Word, gesture or act intended to insult the modesty of a
woman.

Saving of inherent power of High court:

Section 482 of the CrPC is a provision in which the High court inherent power is
not limited or affected by the Code of criminal procedure in any ways. The high
Court has inherent power to make such order which is necessary to give effect to
order under code of criminal procedure or prevent abuse of the process of any court
or otherwise to secure the end of justice.

The powers of the High Court U/s 482 Cr.P.C are partly administrative and partly
judicial. The section was added by the Code of Criminal Procedure (Amendment)
Act of 1923, as the High Courts were unable to render complete justice even if in a
given case the illegality was palpable and apparent. The Hon'ble Supreme Court in
State of Karnataka v. Muniswami– AIR 1977 SC 1489 held that the section
envisages 3 circumstances in which the inherent jurisdiction may be exercised,
namely, "to give effect to an order under CrPC, to prevent abuse of the process of the
court, and to secure the ends of justice".

Inherent powers u/s 482 of Cr.P.C. include powers to quash FIR, investigation or
any criminal proceedings pending before the High Court or any Courts subordinate
to it and are of wide magnitude and ramification. Such powers can be exercised to
secure ends of justice, prevent abuse of the process of any court and to make such
orders as may be necessary to give effect to any order under this Code, depending
upon the facts of a given case. Court can always take note of any miscarriage of
justice and prevent the same by exercising its powers u/s 482 of Cr.P.C. These
powers are neither limited nor curtailed by any other provisions of the Code.
However, such inherent powers are to be exercised sparingly and with caution.

It is well settled that the inherent powers under section 482 can be exercised only
when no other remedy is available to the litigant and NOT where a specific remedy
is provided by the statute. If an effective alternative remedy is available, the High
Court will not exercise its powers under this section, especially when the applicant
may not have availed of that remedy.

In the case of Rajeev kourav v/s Baisahab and ors:

Appellant-husband had lodged a complaint and as per the complaint, the three
respondents had harassed the wife of the appellant resulting in her suicide as well
as of her children. The first respondent is the wife of the elder brother of the
appellant while the other two respondents are her brothers. Both the first
respondent and her husband were living separately. The first respondent was
unhappy about the land given to her husband by the father of the appellant. So,
the three respondents were harassing the family of the appellant particularly, his
wife. The first respondent filed a false complaint against the appellant and his
family then intimidated maternal uncle of the appellant who complained to police.
The police temporarily settled the matter. Later, the three respondents assaulted
the wife of the appellant and she, along with her children committed suicide.

A petition was filed under Section 482 of the Code of Criminal Procedure for
quashing the criminal proceedings before the High Court where the court quashed
the criminal proceedings against the respondents.

An appeal by way of special leave petition was filed before the Apex Court where the
court opined: The conclusion of the High Court to quash the criminal proceedings
is on the basis of its assessment of the statements recorded under Section 161
CrPC. Statements of witnesses recorded under Section 161 CrPC being wholly
inadmissible in evidence cannot be taken into consideration by the Court, while
adjudicating a petition filed under Section 482 CrPC