The police are supposed to record the oral statements of witnesses which may subsequently be used as evidence in course of trial of the case. The statements so recorded by police officers and the documents filed in support of them are public documents that can be obtained from them by the citizens. Before trial, the copies of such statements are to be furnished to the accused, free of cost.
The words “any person” used in Section 161 (1) also include a person who may be accused of the crime and suspects.
Inordinate delay on the part of the investigating officers in recording statements of witnesses including the accused and the suspects may throw doubt on the veracity of the prosecution case. The Magistrate should ask the investigating officer to explain the reason for delay in recording of statements of witnesses etc. and if the delay is properly explained, it will have no adverse affect on the probative value of the witness concerned.
In a case which is exclusively triable by the Court of Session, the Magistrate need not record the statements of the witnesses under this section.
Sub-section (2) makes it obligatory for a person who is examined by police in course of investigation, to answer all questions put to him truly other than questions the answers to which are likely to incriminate him or expose him to a criminal charge.
A person who gives false information or deliberately gives untrue answers is liable to be punished under Sections 202 and 203 of the Indian Penal Code.
The statements of witnesses under Section 161 should be recorded in the first person, and they should not be in indirect form of speech. No oath or affirmation is – required in an examination of witnesses under this section. It is not mandatory for the investigating officer to reduce in writing the statement of the person examined. But the statement, if recorded, must be recorded as it was actually made. As sub-section (3) prohibits making of precis of a statement recorded under Section 161 of the Code.
The Supreme Court in State of NCT of Delhi v. Ravikant Sharma explained the privilege in respect of statement of witnesses recorded under Section 161 during investigation and held that any direction to supply “gist” of such statements was unsustainable because such statement of witnesses recorded during investigation does not include interpretation of Investigation Officer.