Section 180(2), BNSS 2023 — the substance

No statement made by any person to a police officer in the course of an investigation shall, if reduced to writing, be signed by the person making it; nor shall any such statement or any record thereof 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 whose statement has been reduced into writing, 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 148 of the Bharatiya Sakshya Adhiniyam, 2023.

📖 Dharma Rama Bhagare v. State of Maharashtra, (1973) 1 SCC 537

Facts: A conviction was challenged on the footing that the first information report did not support the case as it emerged at the trial, and the argument required the Court to state precisely what use may be made of an FIR.

Held: The Supreme Court held that the first information report is never treated as substantive evidence, and that it can be used only for corroborating or contradicting its maker when he appears in court as a witness. The Court held that it is not the evidence of the facts stated in it, and cannot be used to contradict or discredit any witness other than the person who lodged it; nor can the prosecution rely on it as proof of what it records. It held that where the informant is examined as a witness, his earlier report may be put to him in the ordinary way; but where he is not examined at all, the report has no evidentiary value and cannot be used against the accused. The Court emphasised that the omission of a detail in the FIR is not by itself fatal, the report being made at a stage when the informant may know little; but that a material improvement made for the first time at the trial may properly be tested against it.

Ratio: The FIR is never substantive evidence. It may be used only to corroborate or contradict its maker when he testifies, cannot be used against any other witness, and has no evidentiary value at all if the informant is not examined.

📖 Tahsildar Singh v. State of Uttar Pradesh, AIR 1959 SC 1012 (five Judges)

Facts: The defence sought to use statements recorded by the police during the investigation to show that witnesses had, at the trial, given accounts materially different from what they had earlier said — including by pointing to matters which the earlier statements did not mention at all.

Held: The Constitution Bench held that a statement recorded under the provision corresponding to section 180 may be used only to contradict the witness, and for no other purpose. The Court held that a statement means what the witness actually said, and that the bar is absolute save for the exception the proviso creates. On the much-litigated question of omissions, the Court held that an omission is not ordinarily a contradiction, but that it may become one where the omitted matter is such that its absence amounts by necessary implication to an assertion of something different from what the witness now says — as where a witness who described an occurrence in detail said nothing at all about a fact he now says was the most striking feature of it. The Court held that the contradiction must be brought out in the manner the Evidence Act prescribes: the attention of the witness must be drawn to the part relied on, and the part must be duly proved.

Ratio: A police statement may be used only to contradict the witness and for no other purpose. An omission is not ordinarily a contradiction, but becomes one where its absence amounts by necessary implication to an assertion of something different.

⚠ The exceptions to section 180

A statement falling within section 26 of the Bharatiya Sakshya Adhiniyam — a dying declaration, or one of the other statements that provision admits — is not affected by the bar.

Nor is a statement which leads to a discovery, so far as it distinctly relates to the fact thereby discovered.

And the bar applies only to statements made in the course of an investigation. What a person says to a police officer before the investigation begins, or in some other capacity, is not caught by it.

Section 180(3) now permits the statement to be recorded by audio-video electronic means. That does not alter its use at the trial — it remains usable only to contradict — but it makes it far harder to dispute what was actually said, which was the commonest ground of argument under the old provision.

The position stated shortly

1. The FIR is the information which starts the investigation; a section 180 statement is made in the course of it.

2. The FIR is signed by the informant; a section 180 statement, if reduced to writing, shall not be signed.

3. Neither is substantive evidence. A conviction rests on what the witness says on oath in court.

4. The FIR may be used to corroborate or contradict its maker, and as a dying declaration if he dies.

5. It cannot be used against any witness other than its maker, and has no evidentiary value at all if the informant is not examined: Dharma Rama Bhagare.

6. A section 180 statement shall not be used for any purpose except, under the proviso, to contradict the witness.

7. It may be used by the accused as of right; by the prosecution only with the permission of the Court.

8. An omission is not ordinarily a contradiction, but becomes one where its absence amounts by necessary implication to an assertion of something different: Tahsildar Singh.

9. The contradiction must be brought out in the manner the Evidence Act prescribes: the witness’s attention drawn to the part relied on, and the part duly proved.

10. The bar does not affect a dying declaration, a statement leading to a discovery, or anything said outside the course of an investigation.