Analyzing the Use of Police Statements under CrPC & BNSS vis-à-vis Cross-Examination under Evidence Laws

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 Analyzing the Use of Police Statements under CrPC & BNSS vis-à-vis Cross-Examination under Evidence Laws

Introduction : To fully grapple with the evidentiary implications of statements made to police officers during investigation, it is essential to closely examine the corresponding provisions in the Criminal Procedure Code, 1973 (CrPC) and the Bharatiya Nagrik Suraksha Sanhita, 2023 (BNSS), particularly Section 162(1) CrPC and Section 181(1) BNSS, along with their respective provisos. Additionally, one must analyse Section 145 of the Indian Evidence Act, 1872 and its successor provision, Section 148 of the Bharatiya Sakshya Adhiniyam, 2023 (BSA), which govern cross-examination based on prior written statements.

1. The Statutory Provisions Compared

a) Section 162(1) CrPC, 1973 and Section 181(1) BNSS, 2023

Both sections lay down a general embargo on the use of statements made to a police officer during an investigation. Such statements cannot be signed by the maker and are barred from being used in any trial or inquiry, except under the exceptions carved out in the proviso.

Proviso: It permits the use of such statements only:

  • For contradicting a prosecution witness, and

  • With the permission of the Court, by the prosecution as well,

  • But only in the manner provided under Section 145 of the Indian Evidence Act (or Section 148 of the BSA).

b) Section 145 Evidence Act vs. Section 148 BSA

Both sections are identically worded and lay down two essential limbs:

  1. A witness may be cross-examined as to prior written statements without showing or proving the document.

  2. If the intention is to contradict the witness using that statement, the specific portions must be brought to his attention before they can be proved.

2. Judicial Interpretation: The Landmark Judgment in Tahsildar Singh v. State of U.P.

Citation: AIR 1959 SC 1012 | 1959 Cri LJ 1231

In this Constitutional Bench judgment, the Supreme Court deliberated upon how Section 162 CrPC interacts with Section 145 of the Evidence Act. All six Judges agreed on the general bar and the limited exception under the proviso. However, they were divided on the scope of permissible cross-examination under Section 145.

a) Majority View (Justice K. Subba Rao for 4 Judges)

  • Only the latter limb of Section 145 applies.

  • Police statements under Section 161 CrPC can be used solely to contradict a prosecution witness.

  • They cannot be used for any general cross-examination or corroboration.

Quote:

"It would be doing violence to the language of the proviso if the said statement be allowed to be used for the purpose of cross-examining a witness within the meaning of the first part of Section 145." (Para 13)

b) Minority View (Justice Hidayatullah and Justice Imam)

  • The entire Section 145 should be available for use.

  • Cross-examination need not be restricted to contradiction alone.

  • Emphasised a broader interpretation allowing the defence to utilise both limbs of Section 145 for effective cross-examination.

Quote:

"Our learned brother, Subba Rao, J. restricts the use by the accused of the previous statements to the mechanism of contradiction... but says that the accused has no right to proceed under (1) and (2)."

3. Shifting Perspective: Reconsidering the Minority View

Though the majority view has been followed for decades, the author finds merit in re-evaluating the minority opinion in light of:

  • The literal reading of the proviso to Section 162(1) CrPC.

  • The object of cross-examination under Section 145, which includes testing credibility, not merely contradiction.

  • Ensuring the accused’s right to a fair trial under Article 21.

Given that the proviso permits “use in the manner provided by Section 145,” and since Section 145 includes both limbs, the restrictive reading may be unjustified.

4. Relevance Under BNSS and BSA

The BNSS and BSA have retained the exact language of the corresponding CrPC and Evidence Act provisions. Therefore, the same interpretative dilemma persists. Unless the legislature amends the wording or the Supreme Court revisits Tahsildar Singh’s ratio, the restricted majority interpretation will continue to hold sway.

Conclusion

The interplay between Sections 162/181 and 145/148 is not merely academic but foundational to criminal defence strategy. While the Supreme Court’s majority ruling in Tahsildar Singh binds lower courts, the strength of the minority view opens the door for future reconsideration. With BNSS and BSA reiterating the same framework, perhaps a constitutional bench revisit is warranted to ensure alignment with principles of natural justice and fair trial.

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