The Necessity of Mandatory Audio-Video Recording under S.161 of CrPC

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By Vani Kaushik

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S.161 of the Code of Criminal Procedure (“CrPC”) lays down the rule of examination of witness by the police. It states (relevant portion): “a police officer may examine orally any person supposed to be acquainted with the facts and circumstances of the case”.[1] S.161(2) provides that persons being examined are required to truthfully answer all questions posed to them, excluding those which make her liable for a criminal charge or to pay a penalty.[2]  S.161(3) lays down that the investigating officer (I.O.) may make a written note of the statement of the person.[3]

The Criminal Procedure (Amendment) Act, 2008,[4] introduced a proviso to S.161 (3) which states that the “statement may be recorded by audio-video electronic means”.[5] The usage of the term ‘may’  in S.161(1), S.161(3) and proviso to S.161(3) indicates that it is the police officer’s discretion to note down or record the statement of the witnesses.[6] The Law Commission in its 41st Report refused to make this condition mandatory or obligatory in nature as it would place a heavy and undue burden on the investigating officer. Consequently, his/her attention would be divided as he/she would be busy in noting down the statement instead of focusing on the accused.

It is a well settled principle in law that the statements recorded (either in writing or by audio-video or electronic means) under S.161 of the CrPC cannot be treated as admissible evidence in Court.[7] It is only used to the limited extent of proving a contradiction within the meaning of S.145 of the Indian Evidence Act, 1872 or for the purpose of cross-examining of the witness by the prosecution or for re-examining the witness.[8]

Audio-video recording of statements of witnesses – the benefits

The legislative intent behind the introduction of the provision that statement of witnesses may also be recorded by audio and video methods was that manipulation, forgery, insertion and substitution of the statement made by witnesses must be avoided.[9] Utilizing modern methods for record collection also prevents loss of relevant and crucial information regarding the case.[10] There are a variety of benefits of recording a video or audio of the statement of the witnesses.

Firstly, a permanent and lasting record of the witness’s statement is created.[11] The investigating officer (I.O.) cannot also be accused of torturing or inhumanely treating the witness without solid proof of the same. This also acts as a deterrent to the officials who tend to use unacceptable means in order to extract a statement out of the person being interrogated.[12]  Secondly, in case the person makes a voluntary admission to a fact, or of the crime itself then it is easier for it to be proved in court if that statement of the witness is recording by audio-video means or any other electronic methods.[13] A third benefit is that if an audio or a video recording is done, then the interrogating officer is absolved from the responsibility of noting down the statement of the person in writing.[14] Consequently,  the officer would also be able to gauge the body language and the manner of the person being interrogated, which may provide them with some much needed insights regarding the fact whether the person is being truthful or not. Fourthly, the existence of a recorded statement also facilitates in conducting further investigation in the case.[15] Moreover, certain leads can be accessed again which might have been overlooked at the initial stage.  Another benefit is that a few of these can be used subsequently to train young officers and show them the proper method of investigation and interrogation.[16]   In addition, this is also another progressive step towards increasing the faith of the general public in the criminal investigating system and the practices of the police as the interrogations are no longer closed door and the recording of the statement can be viewed by the court.

The Need for Mandatory Recording of Statements

The issue of custodial violence is one of the major setbacks in the Indian criminal justice system. Recording the statement of witnesses by audio-visual methods might reduce the instances of custodial violence as it is open for the court’s scrutiny. The present situation of the criminal justice system of our society is abhorrent.[17]  The process of investigation itself is a long drawn out process where the police use all the means available to extract a confession or a statement from the accused.[18] This is the impression that the general public carries with itself and therefore does not repose its faith in the methods used by the police officers.[19]

A significant step to remove the vice of custodial violence during police investigation is the introduction of video recording of statements of persons who are being interrogated. Custodial violence is a violation of the rights guaranteed to the accused person under Art. 21 of the Constitution.[20]  It is imperative to remove this evil practice and amending the proviso to S.161(3) of the CrPC to the effect of introducing a mandatory requirement to record the process of investigation and the statement of the witness will be a step in the right direction. This will be helpful in determining whether the statement given by the witness is in fact genuine or has been obtained through means of force or torture. Using the method of audio-visual recording also ensures transparency in the process of interrogation and sheds light on whether the interrogating officers have extracted the statement from the person by means of coercion, force or torture.[21] Consequently, these closed, private and behind the door interrogations are brought in public view and subject to external scrutiny.[22] This also helps to regain the faith of the public in the criminal investigation process.

International jurisprudence also suggests that the Courts generally have an inclination to prefer an audio-visual recording of the statement recorded of the witness.[23]  In certain cases the courts have also issues warnings regarding the errors made by police officers while writing down the statement of the person. Further, there is a high probability that the words might be misunderstood or the interrogator is not able to properly understand the meaning of the witness. Therefore, audio or video recording of statements is a necessity as even the change of a single word might substantially alter the outcome of the case.[24]

A recording of the statement of the witness also reduces the instance of cross-examination, thereby providing legitimacy to the statement of the person. This also reduces the instances of inconsistency between the earlier statements of the person and the subsequent testimony given in court.[25] It was reiterated in V.K. Sharma v. State of Uttrakhand,[26] that the statement of a person recorded under S.161 of the CrPC can only be used in court for the following purposes: first, for cross-examination; second, for proving contradiction in the statement made by the same person under S.145 of the Evidence Act, 1872; and third, for the purposes of re-examination of the witness when it is absolutely necessary.[27]  In case of a contradiction of a statement made during investigation and one made during the course of the trial, the veracity of the former can be verified by questioning the investigating officer.[28]

Consequently, in case a witness turns hostile in court and makes a testimony contradictory to that which she made during investigation, then the investigating officer will be brought to court and will be required to verify that the witness had made the statement during the process of investigation.[29]  Making a video recording of the statement of the witness will be extremely helpful as then the verbatim and live statement of the witness can be shown in Court. This will reduce the possibility and instances of confusion, inconsistency or contradiction at the time of trial. Thus, audio-video recording of statement of witnesses is an essential necessity and there is an urgent need to make it as a mandatory requirement under the proviso to S.161(3) of the CrPC.

A significant problem with following the system of audio/video or using any other electronic means for recording is the expenditure that comes along with purchasing the requisite equipment for the same.[30] The Law Commission of India has also recommended that there must be certain improvements in the infrastructural facilities available at police stations.[31] Particularly, it was suggested that statements recorded under S.161 of the CrPC should be uploaded on the computer and also on the relevant court’s website. It is true that recording statements by audio, video or any other electronic means is cumbersome and expensive. However, there is an urgent need to provide all States of India with the requisite resources to make this possible as the instances of error in making a written record of the statements is increasing.[32]  The Delhi High Court recently suggested that the statements given by witnesses must be recorded using digital means in order to avoid contraction and confusion at the time of trial.[33] Further, the court also reiterated that in today’s time when all policemen have mobile phones with cameras, an audio visual recording of the statement of the person being interrogated can easily be done.[34]

Conclusion

The article begins with a discussion of S.161 of the CrPC which states the general law regarding the examination of witness by the police. The Criminal Procedure (Amendment) Act, 2008 introduced a proviso to S.161(3) by the which the officer has the discretion to record the statement of a witness by audio-video or other electronic means.

There are various benefits of recording the statement of a witness, including the creation of a lasting record of the statement, ease in proving the statement in court and most importantly making the investigation process open for public scrutiny. Further, audio-visual methods of recording statements are useful in curbing the instances of custodial violence. The prevailing problem of a witness turning hostile in court will be greatly resolved if the law provides for a mandatory requirement of audio-video recording of statements under S.161(3) of the CrPC. It is the need of the hour to make the required infrastructural and monetary investments to make mandatory video recording of statements a reality. Proactive steps must be taken by the Central and the State governments to ensure that every police station in the country is equipped with camera recorders for the purpose of recording statements. Necessary training must also be provided to people in villages in order to effectively implement this process. It is time that the Indian legal system evolves with the changing needs of society and is abreast with the latest technological developments.

[The author is a fourth-year B.A. L.L.B. (Hons.) student at WBNUJS, Kolkata.]

[1] The Code of Criminal Procedure, 1973, §161(1).

[2] The Code of Criminal Procedure, 1973, § 161(2).

[3] The Code of Criminal Procedure, 1973, §161(3).

[4] The Code of Criminal Procedure, (Amendment) Act, 2008.

[5] The Code of Criminal Procedure, 1973, §161(3), proviso.

[6] Pakala Narayan Swamy v. Emp. A.I.R. 1939 P.C. 47 (The Privy Council); Mahabir v. State of Bihar, (1972) 1 SCC 748 (763) (The Supreme Court of India); D.D Basu, supra note 6, at 867.

[7] VK Mishra v. State of Uttrakhand, (2015) 9 S.C.C. 588, ¶ 13(The Supreme Court of India).

[8] Id.; Sharad Chandra v. State of Rajasthan, MANU/RH/2207/2015 (The Rajasthan High Court).

[9] Sube Singh v. State of Haryana, 2006 (3) SCC 178, ,¶ 23 (The Supreme Court of India).

[10] Id., at ¶ 24.

[11] Thomas P.Sullivan, Electronic Recording of Custodial Interrogations: Everybody Wins, The Journal of Criminal law and Criminology (Northwestern  University School of  Law, U.S.A.) , 1129 (July 2005), https://scholarlycommons.law.northwestern.edu/cgi/viewcontent.cgi?referer=https://www.google.com/&httpsredir=1&article=7203&context=jclc. (hereinafter “Electronic Recording”).

[12] Id.

[13] Id.

[14] Id.

[15] Id., at 1129.

[16] Id.

[17] Supra Note No, 11, ¶ 23.

[18] Id.

[19] Id..

[20] The Constitution of India, 1950, Art. 21(The Union of  India).

[21] Supra Note No, 11.

[22] Id.

[23] Amy Klobuchar, Eye on Interrogations: How Videotaping Serves the Cause of Justice, Washington Post, (June 10,2002).

[24] Report of the Supreme Court Special Committee on Recordation of Custodial Interrogations,( April 15, 2005), available at http://www.judiciary.state.nj.us/notices/reports/ cookreport.pdf.

[25] Eric Shepherd, Analysing witness testimony: a guide for legal practitioners and other professionals, 244 (1999).

[26] VK Sharma v. State of Uttrakhand, A.I.R. 2015 S.C. 3043 (The Supreme  Court of India).

[27] Id., at ¶ 15.

[28] State of Karnataka v. Bhaskar Kushali Kothakar, (2004) 7 S.C.C. 487 (The Supreme Court of  India).

[29] Anjan Ganguly v. State of West Bengal, (2013) 1 C. Cr. L. R. (Cal) 894(The Calcutta High Court).

[30] Electronic Recording, supra note 13 at 1130.

[31] The Law Commission of India, Expeditious Investigation and Trial of Criminal Cases Against Influential Public Personalities, Report No.239, pg 31.

[32] Id., at 32.

[33]  Ramesh Kumar v. State of Delhi, CRL.A.  395/2000.

[34] Id.

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