The Allahabad High Court on December 22 clarified that the "statements in writing" of a witness could be regarded as statements properly recorded under Section 161 of the CrPC.

The Investigating Officer must attest to the authenticity of any written statement provided by the witness to him or her in order for it to be considered a statement properly recorded under Section 161 of the Criminal Procedure Code, according to Justice Saurabh Shyam Shamshery.

Justice Shamshery observed that "...there is no illegality in taking a written statement of a witness under Section 161 Cr.P.C., when it was reduced in recording in case of diary in presence of witnesses, as well as I.O., has made questions also which are also reduced in writing along with answers. The I.O. has taken sufficient precautions to ensure it to be a written statement of witnesses only."

This resulted in the Court dismissing a Section 482 CrPC petition that sought to overturn a decision by Chief Judicial Magistrate Gautam Buddh Nagar to take the chargesheet against the accused under Sections 504 and 506 I.P.C. into consideration.

The petitioner's advocate claimed that the charge-sheet in the case was only based on written witness statements, which cannot be regarded as a statement recorded under Section 161 Cr.P.C., which requires that the investigating officer interview orally a person ostensibly familiar with the facts and circumstances of the case, and the police officer present any statement made to him in the course of the examination, which may also include a statement recorded by audio and video electronic means.

In its order, the Court noted at the outset that during the course of the investigation, the I.O. had visited the location of the witnesses, who handed over their written statements, which the IO transcribed in their presence in the case diary, as well as original statements, which were made part of the case diary as well. The Court further noted that the IO had a few questions for the witnesses, and that the witnesses' responses had been condensed into writing in the case diary.

The Court further observed on the evidentary value of such statement that "The purpose of statements made under Section 161 Cr.P.C. is to investigate an occurrence to find out culprits. So far as evidentary value of these statements is concerned, it would only for purpose of contradiction, if any, committed by said witness during his testimony in trial. Other than it, it has no evidentary value."

The Court added that the phrase "to examine orally" is used to allow I.O. to record any relevant statements made to him by witnesses that are required to be reduced to writing by him in order to prevent any form of coercion, misrepresentation, or mischief.

The Court also noted that the provision gives police officers discretion to interview anyone orally and may have any statement made to him reduced to writing. As a result, the Court continued, he has discretion not to have the entire statement reduced to writing or he may have only the gist of the statement reduced to writing.

In view of this, the Court observed that there would be no illegality in taking a written statement of a witness under Section 161 Cr.P.C., when it was reduced in recording in case diary in presence of witnesses as well as I.O. has made questions also which are also reduced in writing along with answers. 

Case title - Faisal Ashraf vs. State Of U.P. And 2 Others 
Citation: APPLICATION U/S 482 No. - 23696 of 2022

link: https://elegalix.allahabadhighcourt.in/elegalix/WebDownloadJudgmentDocument.do?judgmentID=10108660