An issue was raised in the case of Nalini Chitambaram v. Directorate of Enforcement, Mad. HC 2018. Issue was, whether section 160 proviso can be applied in cases of all women under investigation to which the court observed that in all cases of aged person, particularly women, if the authorities have to come over to the residence for the purpose of obtaining investigation then this Court is afraid that section 160 is not only abused but also becomes impracticable as it is not possible for the Enforcement Directorate to travel all over the country in each and every case.

The court further observed that the proviso is not for the purpose of granting absolute exemption. In cases where women is sick and unable to move, then investigation officer shall not direct her to appear, thus factual circumstances are to be assessed before granting the benefit of proviso.

As per section 161 of the Code of Criminal Procedure, investigating officer or any other officer authorised by the investigating officer, may orally examine any person who is supposed to be acquainted with the facts and circumstances of the case.

Search person is bound to answer truly all the questions accept the questions which can expose him to criminal charge, proceedings, etc. If he refuses to answer, then he is liable under section 179 of the Indian Penal Code that is refusing to answer public servant authorised to question. If he gives false answer then he is liable under Section 193 of the Indian Penal Code which states punishment for false evidence.

This section as well as Article 20 (3) of the Indian Constitution gives protection to such persons against the questions which incriminate them but they may remain silent by virtue of these provisions.

In Nandini Sathpaty v. P. L. Dani 1978 SC, the court extensively considered the parameters of section 161 (2) of the Criminal Procedure Code and Article 20 (3) and held that the accused person cannot be forced to answer a question merely because the answer thereto is not implicated when viewed in isolation and confirmed to that particular case he is entitled to keep his mouth shut if the answer sought has a reasonable prospect of exposing him to a guilt in some other case.

Statement given under section 161 is also a former statement. All statements are covered under section 162. If investigating officer wants to record the statement under section 161 (3), then he has to record it on a formal page signed by the investigating officer and other witnesses but not of the witness whose statement was so recorded. The recording under this clause shall be done in a question answer form. It is not the duty of the investigating officer to examine all the witnesses but it is expected from him that he must examine all material witnesses.

Statement recorded under section 161 can be made available to the accused. Section 161 is not dependent upon section 160. statement includes oral (sign and gesture also) and written statement.
Evidentiary value of statement under this section is not made on oath and no cross examination of such statement is made therefore it is not a substantive piece of evidence. It can be used only for contradiction and that too when such person appears as a prosecution witness.

Section 32(1) and section 27 of the Indian Evidence Act is an exception to Clause 1 of section 162, CrPC. As a normal rule former statement of witnesses can be used for corroboration or contradiction. However, this rule has been substantially modified by section 162.

If that person whose statement was so recorded appears as a prosecution witness then it cannot be used for corroboration as they might be self-serving. But can be used for contradiction by the accused or by his own party with the leave of the court.

If that person is called as defence witness then his former 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. It cannot be used for corroboration also as it is presumed that investigating officer will never support such defense witness. 

If that person is called as a Court witness under section 311 of the Criminal Procedure Code, then he is neither a prosecution witness nor a defense witness. Now the question arises, can his former statement before police be used for contradiction?

Apparently section 162 does not prohibit the use of such statement by the Court, however, section 162 CrPC is not explicit enough to control section 165 of the Evidence Act which confers very wide powers on court in order to do justice. Therefore baron section 162 will not apply on Court witnesses (Raghunandan v. State of U.P. 1974 SC).

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