Examination of Witnesses by the Police | BNSS 2023

Examination of Witnesses by the Police: Sections 179 to 182 BNSS, Police Statements, Their Evidentiary Value and How a Contradiction Is Proved

Most of what a police officer learns in an investigation he learns by asking people questions. The statements he records are the largest body of material any investigation produces, they form the greater part of the case diary, and copies of those the prosecution relies on are supplied to the accused before the trial. And almost none of it is evidence. A statement made to a police officer is not signed, is not substantive evidence, cannot be used to corroborate the person who made it, and may be used at the trial for one purpose only: to contradict him.

That is a strong rule and an old one, and it exists because a statement recorded by the investigating agency, in its own words, without oath and without the maker signing it, carries none of the guarantees on which evidence is ordinarily admitted. This topic sets out the four sections that govern the process, what use may be made of what they produce, and the procedure by which a contradiction is actually established — a procedure in which the step most often missed is the one that matters.

Figure 1: The four sections

1. Attendance: Section 179

Section 179, BNSS 2023

(1) Any police officer making an investigation may, by order in writing, require the attendance before himself of any person being within the limits of his own or any adjoining station who, from the information given or otherwise, appears to be acquainted with the facts and circumstances of the case; and such person shall attend as so required.

Provided that no male person under the age of fifteen years or above the age of sixty years or a woman or a mentally or physically disabled person or a person with acute illness shall be required to attend at any place other than the place in which such person resides.

(2) The State Government may, by rules, provide for the payment of the reasonable expenses of every person attending at any place other than his residence.

Two features of the section repay attention. The requisition must be by order in writing, so an oral summons to the police station is not a requirement under the section and attendance in answer to it is voluntary. And the proviso protects a defined class: a male under fifteen or above sixty, a woman, a mentally or physically disabled person, and — this is the Sanhita’s addition — a person with an acute illness. They may not be required to attend anywhere but where they reside; the police must go to them.

⚠ The proviso protects the witness, not only the accused

The class the proviso protects is a class of persons acquainted with the facts, which includes witnesses, informants and victims as much as suspects. A woman witness cannot be required to come to the police station at all.

The addition of “a person with acute illness” is new to the Sanhita and closes a gap that had produced real hardship.

The protection is territorial rather than substantive: the person must still answer questions, and section 180(2) still binds him to answer truly. What the proviso governs is where he may be required to do so.

2. Examination: Section 180

Section 180, BNSS 2023

(1) Any police officer making an investigation, or any officer of the police station not below such rank as the State Government may by general or special order prescribe acting on the requisition of such officer, may examine orally any person supposed to be acquainted with the facts and circumstances of the case.

(2) Such person shall be bound to answer truly all questions relating to such case put to him by such officer, other than questions the answers to which would have a tendency to expose him to a criminal charge or to a penalty or forfeiture.

(3) The police officer may reduce into writing any statement made to him in the course of an examination under this section; and if he does so, he shall make a separate and true record of the statement of each such person whose statement he records, and such statement may also be recorded by audio-video electronic means.

Provided that the statement made by a woman against whom the offences under the specified sections are alleged to have been committed or attempted shall be recorded by a woman police officer.

2.1 The duty to answer, and its exception

Sub-section (2) creates a duty and an exception in a single sentence. The person is bound to answer truly all questions relating to the case, which is a real obligation: a refusal without the protection of the exception is a failure of a statutory duty, and a false answer may attract the penal law. The exception is for questions the answers to which would have a tendency to expose him to a criminal charge or to a penalty or forfeiture.

The exception is the statutory reflection of Article 20(3) at the investigation stage, and it is wider than the Article in one respect and narrower in another. It is wider because it protects any person examined, not only a person accused of an offence, so a witness who fears that a truthful answer would expose him to a charge may decline. It is narrower in expression because it speaks of a tendency to expose him to a charge, penalty or forfeiture, whereas Article 20(3) is expressed as a protection against being compelled to be a witness against oneself; but the two have been read together, and an answer which would furnish a link in the chain of evidence against the person has the tendency the sub-section describes.

2.2 The two additions in sub-section (3)

Audio-video recording. A statement recorded under the section may also be recorded by audio-video electronic means. The addition is significant in practice: the principal criticism of police statements has always been that they are recorded in the officer’s words rather than the witness’s, and a recording answers it. The provision is permissive, not mandatory.
A woman officer for a woman complainant. The proviso requires the statement of a woman against whom the specified sexual offences are alleged to have been committed or attempted to be recorded by a woman police officer. It sits alongside the parallel requirements in section 173(1) for the information itself and in section 183(6) for the statement before a Magistrate.

3. The Bar and the Exception: Section 181

Section 181, BNSS 2023

(1) No statement made by any person to a police officer in the course of an investigation under this Chapter shall, if reduced to writing, be signed by the person making it; nor shall any such statement or any record thereof, whether in a police diary or otherwise, or any part of such statement or record, be used for any purpose, save as hereinafter provided, at any inquiry or trial in respect of any offence under investigation at the time when such statement was made.

Provided that 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 the Bharatiya Sakshya Adhiniyam, 2023; 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.

(2) Nothing in this section shall be deemed to apply to any statement falling within the provisions of the Bharatiya Sakshya Adhiniyam relating to dying declarations and other statements of relevant facts by persons who cannot be called, or to affect the provisions of that Adhiniyam relating to how much of the information received from an accused person may be proved.

3.1 What the section forbids

No signature. The statement is not to be signed by the person making it. A signed statement does not become inadmissible by reason of the signature, but the signature is a breach of the section and the court regards it with suspicion, because it suggests that the person was asked to commit himself to the officer’s record.
No use for any purpose. The prohibition is expressed as widely as it can be. The statement may not be used to corroborate the witness, to support the prosecution case, to establish any fact, or to show that the witness had said the same thing before. It is not substantive evidence, and a finding based on a police statement is bad.
Not by the prosecution as of right. The proviso permits the accused to use a part of the statement to contradict the witness as of right; the prosecution may do so only with the permission of the Court. The asymmetry is deliberate: the statement is the prosecution’s own document, and it is not to be used to shore up its own witness.

3.2 The two exceptions in sub-section (2)

The bar does not apply to a dying declaration, or to a statement of a relevant fact by a person who is dead, cannot be found, has become incapable of giving evidence, or whose attendance cannot be procured without unreasonable delay or expense. Such a statement is admissible on its own footing under the law of evidence whoever recorded it, and section 181 does not take that away.

Nor does the bar affect the provision on how much of the information received from an accused person may be proved — the discovery exception, which permits so much of the information given by a person in police custody as relates distinctly to the fact thereby discovered to be proved, whether or not it amounts to a confession. That exception operates notwithstanding section 181, and it is examined separately in the topic on police and judicial confessions.

4. Proving a Contradiction

Figure 2: The four steps

The right to contradict a witness with his police statement is the only use the section permits, and it is a right that is frequently asserted and frequently not established, because the procedure by which a contradiction is proved is not completed. The procedure has four steps.

📖 V.K. Mishra v. State of Uttarakhand, (2015) 9 SCC 588

Facts: The defence had put portions of the witnesses’ police statements to them in cross-examination with a view to establishing contradictions, and relied on those contradictions in argument. The question was what a party must do to bring a contradiction on the record, and what the position is where the witness denies having made the earlier statement.

Held: The Court set out the procedure. Under the provision on cross-examination as to previous statements in writing, a witness may be cross-examined as to a previous statement made by him in writing without the writing being shown to him, but if it is intended to contradict him by the writing, his attention must, before the writing can be proved, be called to those parts of it which are to be used for the purpose of contradicting him. The portion intended to be used must be marked so that the record shows precisely what was put. If the witness admits having made the statement, no further proof is needed. If he denies it, the investigating officer must be examined and asked whether the witness made that statement to him, and it is only on his deposition that the contradiction is proved. A contradiction not so proved is not evidence of anything, and cannot be relied on in argument. The same course must be followed for an omission, which amounts to a contradiction only where the statement, read as a whole, by necessary implication negatives what the witness has deposed to.

Ratio: A contradiction is established only when the specific portion has been put to the witness, marked, and — if he denies it — proved through the investigating officer. Without the last step the contradiction does not exist on the record.

⚠ The step that is missed

Counsel puts the statement to the witness. The witness says he never said it. The cross-examination moves on, the investigating officer is examined on other matters, and the contradiction is never proved.

At the argument stage the contradiction is then relied on, and it is at that point that it becomes apparent that there is nothing on the record to show that the witness ever made the earlier statement. The portion marked in cross-examination is an exhibit for identification and no more.

The remedy is mechanical and must be attended to at the time: note every marked portion, and when the investigating officer enters the box, put each one to him and obtain his answer. The whole value of the police statement to the defence depends on that single step.

5. Omissions, Discrepancies and the Court’s Approach

5.1 When an omission is a contradiction

An omission in a police statement is not by itself a contradiction. The settled test, laid down by a Constitution Bench and applied ever since, is that an omission amounts to a contradiction only where the former statement, read as a whole, by necessary implication negatives what the witness has deposed to. Three situations are usually distinguished.

The situation	Is it a contradiction?
The statement says one thing and the evidence says the opposite — the statement names B as the assailant and the evidence names A	Yes. A direct contradiction
The statement omits a fact which, had it occurred, the witness would in the ordinary course have stated — he describes the whole occurrence but never mentions that the accused was present	Yes, by necessary implication. The narrative as a whole negatives the presence
The statement omits an ordinary detail — the colour of a vehicle, the exact words spoken, the precise sequence of two events	No. A police statement is not expected to contain every particular, and the omission of a detail is not an inconsistency
The statement is shorter than the evidence because the officer recorded a summary	No, unless the summary, read as a whole, is inconsistent with the evidence given

📖 State of Uttar Pradesh v. M.K. Anthony, (1985) 1 SCC 505

Facts: A conviction had been set aside on appeal on the footing that the evidence of the principal witness contained discrepancies and improvements as compared with what he had said earlier, and that his testimony was therefore unreliable. The question was how a court should approach minor inconsistencies in the evidence of an otherwise truthful witness.

Held: The Supreme Court held that while appreciating evidence the court must attempt to separate the grain from the chaff, and must examine whether the discrepancies go to the core of the case or touch only peripheral matters. Minor discrepancies on trivial matters, not touching the core, do not warrant the rejection of the evidence as a whole. The Court observed that exaggerated devotion to the rule of benefit of doubt must not nurture fanciful doubts or lingering suspicion and thereby destroy social defence; and that where a witness is otherwise found reliable, the court should not reject his evidence merely because his account at the trial is fuller than the account he gave earlier. It emphasised that a witness cannot be expected to recall and narrate every detail identically on every occasion, and that the passage of time and the circumstances in which the earlier statement was recorded are relevant.

Ratio: Discrepancies are to be assessed by reference to whether they touch the core of the case or a peripheral matter. Minor inconsistencies and a fuller account at trial do not by themselves make a witness unreliable.

6. The Statement in the Case Papers

Question	Position
Where do the statements go?	They are inserted in the case diary under section 192(2), and copies of the statements of the witnesses the prosecution proposes to examine are forwarded with the report under section 193(8)
Does the accused get a copy?	Yes, of those the prosecution proposes to rely on: section 230 requires the Magistrate to furnish, free of cost, a copy of the police report, the first information report, the statements recorded under section 180 of all persons whom the prosecution proposes to examine as its witnesses, the confessions and statements recorded under section 183, and any other document forwarded with the report
What of a statement the prosecution does not rely on?	Section 193(6) permits the officer to state that a part should be excluded from the copies furnished, with his reasons, and the Magistrate decides. The accused may apply for a statement not supplied to him
Can the accused call for the case diary?	No. Section 192(4) expressly denies it. But the statements of the witnesses the prosecution examines come to him under section 230 in any event
May a statement be used to corroborate?	No. Section 181(1) forbids its use for any purpose save contradiction. A former statement may be used to corroborate a witness under the law of evidence, but not one recorded by a police officer during the investigation
May the prosecution contradict its own witness with it?	Only with the permission of the Court, which in practice is sought when the witness is declared hostile and permission to cross-examine is obtained

7. Key Takeaways

The position stated shortly

1. Section 179 permits attendance to be required by order in writing. A male under fifteen or above sixty, a woman, a disabled person and — new in the Sanhita — a person with an acute illness may not be required to attend anywhere but where they reside.

2. Section 180(1) permits the officer to examine orally any person supposed to be acquainted with the facts.

3. Section 180(2): the person is bound to answer truly, except where the answer would have a tendency to expose him to a criminal charge, penalty or forfeiture. The exception is available to a witness as well as to a suspect.

4. Section 180(3) now permits the statement to be recorded by audio-video electronic means, and requires the statement of a woman complainant in the specified sexual offences to be recorded by a woman police officer.

5. Section 181(1): the statement is not signed, and may not be used for any purpose at the inquiry or trial, save as the proviso permits.

6. The proviso permits it to be used to contradict the maker: by the accused as of right, and by the prosecution only with the permission of the Court. Any part so used may be used in re-examination to explain a matter referred to in cross-examination.

7. The bar does not apply to a dying declaration or a statement of a person who cannot be called, nor does it affect the discovery exception.

8. A contradiction is proved in four steps: put the specific portion to the witness, mark it, and — if he denies it — prove it through the investigating officer. Without the last step the contradiction is not on the record: V.K. Mishra.

9. An omission is a contradiction only where the statement, read as a whole, by necessary implication negatives the evidence. The omission of an ordinary detail is not.

10. Discrepancies are assessed by whether they touch the core of the case or a peripheral matter, and minor inconsistencies do not make an otherwise reliable witness unreliable: M.K. Anthony.

8. Frequently Asked Questions

Can the police require anyone to attend for questioning?

Any person within the limits of the officer’s own or an adjoining station who appears to be acquainted with the facts, by order in writing. But a male person under fifteen or above sixty, a woman, a mentally or physically disabled person and a person with an acute illness shall not be required to attend at any place other than where he or she resides.

Must a person answer every question the police ask?

He is bound to answer truly all questions relating to the case, other than questions the answers to which would have a tendency to expose him to a criminal charge or to a penalty or forfeiture: section 180(2). That exception is available to a witness as well as to a suspect.

Why is a police statement not signed?

Section 181(1) forbids it. The prohibition exists so that a person cannot be committed to a record prepared by the investigating agency in its own words, and so that the statement cannot be used against him as something he has adopted.

Is a police statement evidence at the trial?

No. It is not substantive evidence and may not be used for any purpose save to contradict its maker — by the accused as of right, and by the prosecution only with the permission of the Court. It cannot be used to corroborate the witness or to establish any fact.

How is a contradiction proved?

The specific portion must be put to the witness in cross-examination and marked. If he admits making it, the contradiction is established. If he denies it, the marked portion must be proved through the investigating officer, who is asked whether the witness made that statement to him. Without that step the contradiction is not on the record: V.K. Mishra v. State of Uttarakhand.

When does an omission amount to a contradiction?

Only where the former statement, read as a whole, by necessary implication negatives what the witness has deposed to. The omission of an ordinary detail is not a contradiction, because a police statement is not expected to contain every particular.

Related Topics

Investigation under the BNSS, 2023: Chapter XIII, Sections 173 to 196
Statement Before a Magistrate: Section 183, BNSS
Police Confession and Judicial Confession Compared
Rights of an Arrested Person under the BNSS, 2023
Police Report under the BNSS, 2023: Section 193
Rights of a Female Accused under the BNSS, 2023