Section 161 deals with examination of witnesses by the police during investigation and Section 162 provides that statements of witnesses recorded by the police shall not be required to be signed by the witnesses and further that such statement can be used by the accused and with the permission of the court only for the purpose of contradicting the witness in accordance with Section 145 of the Evidence Act.
As the law stands today, the police cannot elicit (read torture) a statement from an accused and use it in court. This has been done to protect the weak from third-degree collection of statements. As can be seen from the recent Best Bakery case, this allows the witness to say one thing to the police and refute the very same statement in court. This behavior of witnesses has prompted the “Committee on Reforms of Criminal Justice System” to suggest the following.
In other words such statement cannot be used as a previous statement for the purpose of corroborating the maker. This flows from the distrust of the police about their credibility. Several measures have been recommended in this report to remove that distrust and to ensure credibility of the police. These measures include among others, separation of the investigation wing from the law and order wing, insulating it from political and other pressures so that the investigating officers can function impartially, independently and fearlessly by constituting the State Security Commission as recommended by the National Police Commission Volume VIII Chapter III, improving professionalism and efficiency of the investigating officers, etc. Once that is done it paves the way to repose trust and confidence in the investigating officers. This would justify suitably amending Sections 161 and 162 of the Code to enable the statements of witnesses recorded during investigation being treated on par with any previous statements and used for corroborating and contradicting the witness. Section 161(3) gives discretion to the police officer to reduce the statement of the witness into writing.
I agree that it is important to allow investigating officers the right to question the accused and note their responses which may be used against them in a court of law. But what scares me about the committee’s recommendation is the absence of the words “in the presence of the accused lawyer”. The Miranda Law in the United States is very clear about this. The accused is given the opportunity to call his/her lawyer to bear witness to what transpires between the police and the accused.
This recommendation in itself, without provision to protect the accused from the use of the third-degree is one of many watering down of basic rights in this report.
He who gives up freedom for safety deserves neither – Benjamin Franklin.