The Bharatiya Nagarik Suraksha Sanhita, 2023 (BNSS), which replaced the Code of Criminal Procedure, 1973, has brought several procedural reforms in India’s criminal justice system. Despite the renumbering and restructuring of provisions, many foundational principles governing criminal procedure remain intact, including those related to the recording and admissibility of statements.
One such area of continued and evolving significance is the evidentiary value of First Information Reports (FIR), statements made to the police during investigation, and statements recorded by Magistrates. These elements form the backbone of criminal investigation and are pivotal during the trial.
First Information Report (FIR): Section 173 of BNSS
A. Definition and Scope
Section 173 of the Bharatiya Nagarik Suraksha Sanhita, 2023 (BNSS), which replaces Section 154 of the erstwhile Criminal Procedure Code, 1973, lays down the procedure for recording a First Information Report (FIR). It mandates that when information regarding the commission of a cognizable offence is given orally to the officer in charge of a police station, it must be reduced to writing, read back to the informant, and duly signed.
The provisions governing FIR fall under Chapter XIII of the BNSS, titled “Information to the Police and Their Powers to Investigate.” This chapter provides the foundational framework for initiating a criminal investigation.
The primary objective of an FIR is to set the criminal justice process in motion by furnishing the earliest version of the occurrence, enabling prompt police action and preservation of evidence.
In Lalita Kumari v. Government of Uttar Pradesh & Others (2014), the Supreme Court ruled that when information disclosing a cognizable offence is received, the registration of an FIR is mandatory. The Court emphasised that no preliminary inquiry is permissible before registering such an FIR.
B. Evidentiary Value of FIR
It is a well-settled principle of law that a First Information Report (FIR) is not a substantive piece of evidence. It does not carry independent probative value and cannot be used as evidence of the truth of its contents. The FIR cannot be used against its maker if he is later prosecuted as an accused, nor can it be employed to corroborate or contradict other witnesses in the trial.
However, an FIR may serve limited evidentiary purposes:
- It can be used by the prosecution to corroborate the statement of the informant under Section 160 of the Bharatiya Sakshya Adhiniyam, if the informant appears as a witness.
- It may also be used to contradict the first informant’s testimony, subject to compliance with procedural safeguards.
- The FIR can help demonstrate that the accused was not falsely implicated at a later stage, thereby rebutting allegations of afterthought.
- In certain circumstances, the FIR may be treated as part of the conduct of the informant and thus acquire evidentiary value.
- If the informant is deceased, and the FIR contains a statement regarding the cause or circumstances of his death, it may be admissible as a dying declaration and thus be treated as substantive evidence under Section 26 of the BSA.
Statements Made to Police: Section 180 BNSS
What is a Police Statement under BNSS?
Under the Bharatiya Nagarik Suraksha Sanhita, 2023 (BNSS), a police statement refers to the information recorded by a police officer from a person who is acquainted with the facts and circumstances of a case during the course of an investigation. The relevant provision for this is Section 180 BNSS, which corresponds to Section 161 of the Criminal Procedure Code, 1973 (CrPC).
In Sewaki v. State of Himachal Pradesh (1981), the Court held that statements recorded by the investigating officer under Section 161 (now Section 180 of BNSS) are neither made under oath nor subjected to cross-examination as required under Section 145 of the Evidence Act.
Consequently, such statements do not qualify as evidence of the facts stated therein and, therefore, cannot be treated as substantive pieces of evidence under the law of evidence.
B. Evidentiary Value
Statements recorded under Section 180 BNSS:
- Are not substantive evidence.
- Can be used only to contradict the witness during trial.
- Cannot be used for corroboration or for proving the truth of the statement.
Section 181 of BNSS: Use of Police Statements in Court Proceedings
Section 181 of the Bharatiya Nagarik Suraksha Sanhita, 2023 (BNSS) governs how police-recorded statements made during an investigation may be used in court. This provision ensures that such statements are not misused during trial and that both the prosecution and the defence follow fair procedures when referring to them.
General Prohibition on Use
As a rule, statements made to police officers during an investigation must not be signed by the person making them. This is to prevent any undue pressure, coercion, or later disputes about the authenticity of the statement. Furthermore, such statements cannot be used as evidence in an inquiry or trial unless permitted under specific provisions of law.
Usage in Court by Accused or Prosecution
When a prosecution witness appears in court and has previously made a statement to the police, the accused is allowed to use any part of that statement to contradict the witness. This serves as an important tool for challenging the credibility of testimony. The prosecution may also refer to the same statement, but only with the permission of the court.
Importantly, the process of using such statements for contradiction must comply with Section 148 of the Bharatiya Sakshya Adhiniyam, 2023, which deals with how and when contradiction can be brought on record during cross-examination.
Re-examination Rights
If a police statement is used during cross-examination to contradict a witness, the law permits re-examination by the party who called the witness. In such cases, any part of the statement may be referred to, but only to explain the contradictions or omissions raised. This ensures fairness and provides the witness an opportunity to clarify context.
Important Exceptions
Section 181 does not apply to:
- Statements under Section 26(a) of the Bharatiya Sakshya Adhiniyam, such as dying declarations, which are admissible as substantive evidence.
- Situations falling under the proviso to Section 23(2) of the BSA, which deals with the discovery of facts based on information given by the accused.
Omissions as Contradictions
Not every omission in a police statement counts as a contradiction. However, if the omission is significant and directly relevant to the issue, it may amount to a contradiction. Whether an omission qualifies as a contradiction is a question of fact that depends on the context and materiality of what was left out.
In Tahsildar Singh v. State of Uttar Pradesh (1959), the Supreme Court held that not all omissions in police statements amount to contradictions under Section 162 of the CrPC (Section 181 BNSS). An omission can be treated as a contradiction only if it is material, clearly implied, or inconsistent with the witness’s court testimony. The Court emphasised that the trial judge has to assess whether a specific omission qualifies as a contradiction after comparing the police statement with the in-court testimony.
Purpose and Rationale
The underlying objective of Section 181 is to prevent misuse of statements recorded by the police, especially since they are not made under oath and are not subject to immediate judicial scrutiny. The provision ensures that such statements are used in court only in a regulated manner, preserving the rights of both the accused and the prosecution. It strikes a balance between investigative necessity and fair trial principles.
Statements Made to Magistrate: Section 183
A. Section 183 BNSS – Statement Before Magistrate
This provision replaces Section 164 CrPC and authorises a Magistrate to record statements or confessions of witnesses and accused persons during investigation.
Section 183 of the Bharatiya Nagarik Suraksha Sanhita, 2023 (BNSS) allows any Magistrate in the district—regardless of jurisdiction—to record a confession or statement made to them during investigation or any time before the inquiry or trial begins. Such recording may be done via audio-video electronic means, and must take place in the presence of the accused’s advocate, where applicable.
Before recording any confession, the Magistrate is required to explain to the person that making a confession is not mandatory, and that if made, it can be used as evidence against them. The confession can only be recorded if the Magistrate is satisfied that it is voluntary. If the person refuses to confess, the Magistrate must not authorise police custody for them.
The confession must be recorded in the same manner as an accused’s examination under Section 316 BNSS, and must be signed by the person making it. A memorandum signed by the Magistrate must also be added, certifying that the confession was made voluntarily and recorded in their presence and hearing, and that it is accurate and complete.
Statements that are not confessions may be recorded in any form deemed appropriate by the Magistrate, who also has the authority to administer an oath while recording such statements.
In serious offences, particularly those punishable under Sections 64 to 79 and Section 124 of the Bharatiya Nyaya Sanhita, 2023, the Magistrate is mandated to record the victim’s statement promptly once the police are notified. Such statements should preferably be recorded by a woman Magistrate, or in the presence of a woman officer if a male Magistrate is recording it.
Where the offence is punishable with 10 years’ imprisonment or more, life imprisonment, or death, the Magistrate is obligated to record the statement of the witness presented by the police. If the person giving the statement is mentally or physically disabled, the Magistrate must take assistance from an interpreter or special educator, and the statement must be audio-video recorded, preferably using a mobile phone.
In such cases, a statement recorded from a disabled person is treated as examination-in-chief under Section 142 of the Bharatiya Sakshya Adhiniyam, 2023, allowing cross-examination at trial without re-recording the statement.
Finally, any confession or statement recorded under this section must be forwarded to the Magistrate who will try or inquire into the case, ensuring continuity and judicial oversight in the trial process.
B. Evidentiary Value
A statement recorded by a Judicial or Metropolitan Magistrate following the procedure under Section 164 CrPC (now Section 183 BNSS) is legally admissible in court and, if deemed voluntary and trustworthy, can independently form the basis for a conviction.
In Dagdu v. State of Maharashtra (1977), the Supreme Court upheld that a confession recorded under Section 164 CrPC (now Section 183 BNSS) remains admissible even if procedural guidelines are not strictly followed, though such non-compliance may diminish its evidentiary value.
Conclusion
The evidentiary value of FIRs, police statements, and Magistrate-recorded statements under the BNSS continues to play a crucial role in the criminal justice process. While FIRs and police statements are generally inadmissible as substantive evidence, they serve crucial functions in corroboration and contradiction. Statements made to Magistrates, on the other hand, carry significant weight as substantive evidence, particularly when recorded with procedural sanctity.
The framework under the BNSS and the Bharatiya Sakshya Adhiniyam upholds the rights of the accused, ensures fairness in the trial process, and emphasises voluntariness, credibility, and transparency. As these new laws begin to operate, it will be up to the judiciary to interpret their provisions in harmony with constitutional values and evolving societal standards.
References
- Bharatiya Nagarik Suraksha Sanhita, 2023
- Lalita Kumari v. Govt. of U.P.& Ors, AIR 2014 SC 187
- Sewaki v. State of Himachal Pradesh, (1981) CriLJ 919
- Tahsildar Singh v. State of Uttar Pradesh, 1959 AIR 1012
- Dagdu And Others v. State Of Maharashtra (1977 INSC 127)
- Saket Bhalotia & Amogh Dubey, Evidentiary value of Statements recorded during A Criminal Investigation, Available Here