manmat
in Criminal Law
Asked August 20, 2015

scope of section 161 crpc

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person whose statement is not recorded under crpc161, Can he be called as prosecussion witness  in court ?

Answer 1

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Ragini Gupta
Section 161 of the Code of Criminal Procedure, 1973 provides for the examination of a witness by the police. There is no general prohibition for examining a witness by the Court whose statement has not been recorded under Section 161 by the police.[1] Thus, the mere fact that the statement of a particular person has not been recorded under Section 161 does not act as a bar to examining him as a witness in the court. Also, this by itself would not render the testimony of such a witness inadmissible. The Court has the power to consider all evidence in favor of the prosecution, which would allow the Court to consider a witness even if his statement is not recorded under Section 161. If the statement is not recorded under Section 161 but the prosecution produces such a witness in the court with the prior permission of the Court, the prosecution is allowed to present the witness.[2] However, in a 2012 judgment of the Bombay High Court[3], it was held it is necessary for the sake of propriety, to record a person’s statement. This is because it is only after the statement has been recorded that the Court is in a position to form an opinion as to whether the evidence of such a witness would be necessary, desirable or essential for a just decision of the case.[4] Also, recording the statement ensures the accused a proper opportunity to defend himself, since he is made aware of what the witness is likely to depose.[5] Thus, the investigating agency should, at the stage of the trial, record the statement of the witness after seeking permission of the Court to do the same, if this was not already done during investigation.[6] Therefore, the absence of a written statement under Section 161 cannot restrict the prosecution from calling the witness but it must be ensured that the Court is made aware about the importance of the witness and the defense gets an adequate opportunity to defend the new facts presented by the witness before the Court. [1] Kishore Signapurkar and Others v The State of Maharashtra and Others 2012 Bom CR (Cri) 616, Public Prosecutor v C.D. Naidu And Others AIR 1960 AP 367, Om Prakash v State of Rajasthan 2003 Cri LJ 4704. [2] Om Prakash v State of Rajasthan 2003 Cri LJ 4704. [3]Kishore Signapurkar and Others v The State of Maharashtra and Others 2012 Bom CR (Cri) 616. [4] Ibid. [5] Ibid. [6] Ibid.
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