The supreme court of India in the case of Rajeev kourav v/s Baisahab and ors has ruled that the statement made by the witness to the police in the examination of witness under section 161 CrPc is an inadmissible evidence for quashing the criminal proceeding petition file in the High court under section 482 Crpc.
The Apex Court bench comprising of Justice L. Nageswara Rao and Justice Deepak Gupta noted that the statement of the witnesses recorded under Section 161 of the Code of Criminal Procedure is not admissible as evidence when the court is examining a petition filed under Section 482 of the Code of Criminal Procedure. The court held that the High Court erred in quashing the criminal proceedings by scrutinizing the recorded witnesses’ statement under Section 161 Cr.P.C.
Examination of witness by police:
Section 161 of CrPC is a provision given in the criminal procedure code in which police can examine any person orally as witness of the offence. Any person can be examined as a witness to an offence by following officer;
1. By The Police officer should be investigating in charge or
2. By Any police officer acting on the requisition of the investigation officer and he should be of such rank as may be prescribe by the state government by general or special order for the purpose of examination.
The person who is to be examined by the police for the purpose of witness to the offence is supposed to be acquainted with facts and circumstance of the case. The police would be finding out the fact and circumstances of the case on examining by asking question relating to the case.
The person who is to be examined is required to answer the entire question put before it. However they are not bound to answer that question which would expose him to criminal charge or to a penalty or forfeiture.
Any person here means it could be of Victim, Accuse or any other person who is acquainted to the facts and circumstances. The accused has got right to remain silent as he got ‘right against self incrimination’ as per S.161 (2) CrPC and Art. 20(3) of Indian Constiutuion. But if any other person as a witness examined by the police does not give answers to the questions except the answer that would expose him to criminal charge, penalty or forfeiture then he can be punishable u/s.179 IPC or if he gives false information he can be punished u/s.193 IPC.
The police may reduce in writing all those statement made to it while examination of the persons and if reduce in writing then he shall make separate and true record of the statement of each statement.
The statement made may b recorded in audio cum vedio electronic means. Moreover statement made by women shall be recorded by a woman police officer or any woman officer in the following alleged to have committed or attempted offence.
1. Section 354 IPC; Assault or criminal force to woman with intent to outrage her modesty.
2. Section 354(A); Sexual harassment and punishment for sexual harassment.
3. Section 354(B); Assault or use of criminal force to woman with intent to disrobe.
4. Section 354(C); Voyeurism.
5. Section 354D; Stalking.
6. Section 376; Punishment for rape.
7. Section 376(A); Punishment for causing death or resulting in persistent vegetative state of victim.
8. Section 376(AB); Punishment for rape on woman under twelve years of age.
9. Section 376(B); Sexual intercourse by husband upon his wife during separation.
10. Section 376(C); Sexual intercourse by a person in authority.
11. Section 376(D); Gang Rape.
12. Section 376(DA); Punishment for gang rape on woman under sixteen years of age.
13. Section 376(DB); Punishment for gang rape on woman under twelve years of age.
14. Section 367(E); Punishment for repeat offenders.
15. Section 509; Word, gesture or act intended to insult the modesty of a woman.
Saving of inherent power of High court:
Section 482 of the CrPC is a provision in which the High court inherent power is not limited or affected by the Code of criminal procedure in any ways. The high Court has inherent power to make such order which is necessary to give effect to order under code of criminal procedure or prevent abuse of the process of any court or otherwise to secure the end of justice.
The powers of the High Court U/s 482 Cr.P.C are partly administrative and partly judicial. The section was added by the Code of Criminal Procedure (Amendment) Act of 1923, as the High Courts were unable to render complete justice even if in a given case the illegality was palpable and apparent. The Hon’ble Supreme Court in State of Karnataka v. Muniswami– AIR 1977 SC 1489 held that the section envisages 3 circumstances in which the inherent jurisdiction may be exercised, namely, “to give effect to an order under CrPC, to prevent abuse of the process of the court, and to secure the ends of justice”.
Inherent powers u/s 482 of Cr.P.C. include powers to quash FIR, investigation or any criminal proceedings pending before the High Court or any Courts subordinate to it and are of wide magnitude and ramification. Such powers can be exercised to secure ends of justice, prevent abuse of the process of any court and to make such orders as may be necessary to give effect to any order under this Code, depending upon the facts of a given case. Court can always take note of any miscarriage of justice and prevent the same by exercising its powers u/s 482 of Cr.P.C. These powers are neither limited nor curtailed by any other provisions of the Code. However, such inherent powers are to be exercised sparingly and with caution.
It is well settled that the inherent powers under section 482 can be exercised only when no other remedy is available to the litigant and NOT where a specific remedy is provided by the statute. If an effective alternative remedy is available, the High Court will not exercise its powers under this section, especially when the applicant may not have availed of that remedy.
In the case of Rajeev kourav v/s Baisahab and ors:
Appellant-husband had lodged a complaint and as per the complaint, the three respondents had harassed the wife of the appellant resulting in her suicide as well as of her children. The first respondent is the wife of the elder brother of the appellant while the other two respondents are her brothers. Both the first respondent and her husband were living separately. The first respondent was unhappy about the land given to her husband by the father of the appellant. So, the three respondents were harassing the family of the appellant particularly, his wife. The first respondent filed a false complaint against the appellant and his family then intimidated maternal uncle of the appellant who complained to police. The police temporarily settled the matter. Later, the three respondents assaulted the wife of the appellant and she, along with her children committed suicide.
A petition was filed under Section 482 of the Code of Criminal Procedure for quashing the criminal proceedings before the High Court where the court quashed the criminal proceedings against the respondents.
An appeal by way of special leave petition was filed before the Apex Court where the court opined: The conclusion of the High Court to quash the criminal proceedings is on the basis of its assessment of the statements recorded under Section 161 CrPC. Statements of witnesses recorded under Section 161 CrPC being wholly inadmissible in evidence cannot be taken into consideration by the Court, while adjudicating a petition filed under Section 482 CrPC.
