As rightly pointed out by the Apex Court, the object of Section 162 is “to protect the accused both against overzealous police officers and untruthful witnesses.” It cannot be used for corroborating a witness but it can certainly be used to contradict him by a police statement.
Where a person appears as a defence witness in a trial, his former statement made before the police cannot be used for contradicting him because it would be against the accepted norms of justice to allow a witness to be contradicted by a statement (record) prepared by the opposite party, i.e., the police/prosecution.
A statement made by the accused to the police in course of investigation is totally inadmissible in evidence as it is barred by Section 162 and it is immaterial whether such statement amounts to a confession or admission; the only exception to this general rule being the statements made by the accused under Sections 32(1) and 27 of the Evidence Act.
Sub-section (1) prohibits an Investigation Officer from taking the signature of the person questioned when his statement is recorded in writing. Violation of this mandate may weaken the testimony of the witnesses in trial Court. This bar also extends to the statements of the accused person. Such statements are not rendered inadmissible because they necessitate need deeper scrutiny before being accepted in evidence.
The Supreme Court in Narpal Singh v. State of Haryana, held that the statements made in inquest report are hit by Section 162 and are inadmissible in evidence if the signatories were not examined, as witnesses. Elaborating the point further, the Court observed that an Inquest Report is to be made by the Investigating Officer just to indicate the injuries which he has found on the body of the deceased person.
It may be witnessed by one or two persons but it is not at all necessary for the Investigating Officer to record the statements of witnesses or to get the statements of witnesses signed on the Inquest Report.
The Apex Court in State of U.P. v. Vyas Tiwari, ruled that an officer of Railway Protection Force making inquiry under Section 8 (1) of the Railway Property (Unlawful possession) Act is not a police officer within the meaning of Section 162 of Cr. P.C. and therefore the bar on evidential use of statements contained in this section has no application in such cases.
In Yusufalli v. State of Maharashtra, the question of statements made by the accused and the complainant in the test identification parade and their admissibility in evidence under Section 162 was involved for consideration before the Court.
The Court held such statements could not be regarded as having been made to a police officer as contemplated by Section 162 and, therefore, were outside the purview of this section. But the statement given by the identifier in a test identification parade as regards his mental act of identification, which he gives by way of corroboration of his identification of accused at the trial is admissible in evidence as it would not be barred by the provisions of Section 162 of the Code.
It has been well settled that the first information report made under Section 154 against the accused is not a statement within the meaning of this section since it is not made in course of investigation.
The Supreme Court in Jit Singh v. State of Punjab, held that notes on site plan at the scene of offence prepared by the investigation officer in accordance with the various situations pointed out to him by witnesses would be deemed to be statements recorded by investigating officer in course of investigation and, therefore, would be hit by Section 162 of the Code.
As such, they can be used only for contradicting the witnesses in accordance with the provisions of Section 145 of the Evidence Act. Similarly, a rough sketch map prepared by the sub-Inspector of Police on the basis of a statement made to him by eye-witnesses during the course of investigation showing the place where the deceased was hit by the assailant was held to be admissible under Section 162 as it is deemed to be a statement made to the police during the process of investigation.
The provisions of Section 162 do not offend the provisions of Section 27 of the Evidence Act, and, therefore, information or statement leading to the discovery of a fact made to the police and admissible under Section 27 of the Evidence Act, is not rendered inadmissible under this section.
The protection granted under Section 162, Cr PC to the accused regarding inadmissibility of the statement made by him to the Investigating Officer during investigation extends only in a criminal inquiry or trial and it has no application in civil proceedings or writ proceedings under Article 32 or 226 of the Constitution. Therefore such statements can be used as evidence in such proceedings.
Thus in Khan Mohd. Reas Ahmad v. State of Maharashtra, a civil suit for declaration, the defendant exhibited in evidence the statement of plaintiff made to a police officer declaring that he was an Indian citizen while the police was investigating a case against him under Section 14 of the Foreigners Act. The Court held that the statements made to police during investigation are admissible in evidence in civil cases and Section 162 of Cr PC has no application in civil case or writ proceedings.
The Explanation added to this section provides that an omission to state a fact or circumstance in the statement under Section 162 may amount to contradiction if the same appears to be significant and otherwise relevant having regard to the context in which such omission occurs.
The fact whether any omission amounts to contradiction in a particular context is a question of fact depending upon circumstances of each case. It has been held that where omissions are vital, they merit consideration but mere small omissions will not justify a finding by a Court that the witnesses are liars.