Section 161 CrPC - Examination of Witnesses by Police
Section 161 of the Code of Criminal Procedure, 1973 governed the oral examination of persons acquainted with the facts and circumstances of a case during police investigation. This article explains the provision as it stood immediately before implementation of the Bharatiya Nagarik Suraksha Sanhita, 2023.
Pre-BNSS law: The Bharatiya Nagarik Suraksha Sanhita, 2023 came into force on 1 July 2024. This page is intentionally focused on Section 161 CrPC for matters governed by the earlier Code, subject to the applicable repeal and savings provisions.
Meaning and scope of Section 161 CrPC
Section 161 formed part of Chapter XII of the CrPC dealing with information to the police and their powers to investigate. It authorised an investigating police officer, or another police officer of the prescribed rank acting on the investigating officer's requisition, to examine orally a person believed to know the facts and circumstances of the case.
The provision was an investigative mechanism for obtaining information from persons acquainted with the case. A statement recorded during such examination was governed together with Section 162 CrPC, which restricted the signing and evidentiary use of statements made to police during investigation.
Section 161 CrPC - statutory provision
161. Examination of witnesses by police.
(1) Any police officer making an investigation under this Chapter, or any police officer not below such rank as the State Government may, by general or special order, prescribe in this behalf, acting on the requisition of such officer, may examine orally any person supposed to be acquainted with the facts and circumstances of the case.
(2) Such person shall be bound to answer truly all questions relating to such case put to him by such officer, other than questions the answers to which would have a tendency to expose him to a criminal charge or to a penalty or forfeiture.
(3) The police officer may reduce into writing any statement made to him in the course of an examination under this section; and if he does so, he shall make a separate and true record of the statement of each such person whose statement he records.
Provided that a statement made under this sub-section may also be recorded by audio-video electronic means.
Provided further that the statement of a woman against whom an offence under section 354, section 354A, section 354B, section 354C, section 354D, section 376, section 376A, section 376AB, section 376B, section 376C, section 376D, section 376DA, section 376DB, section 376E or section 509 of the Indian Penal Code, 1860 is alleged to have been committed or attempted shall be recorded by a woman police officer or any woman officer.
Who may be examined?
The investigating officer may orally examine any person who is supposed to be acquainted with the facts and circumstances of the case. The statutory expression is broad and is not confined to a person who will necessarily be cited as a prosecution witness at trial.
Duty to answer and protection against self-incrimination
Under Section 161(2), the person examined is ordinarily bound to answer truthfully questions relating to the case. The section itself creates an important exception: the person need not answer a question where the answer would tend to expose that person to a criminal charge, penalty or forfeiture. This statutory safeguard operates alongside the constitutional protection against compelled self-incrimination under Article 20(3) of the Constitution where its requirements are attracted.
Recording of a statement under Section 161(3)
A police officer may reduce a statement to writing. If statements are recorded, a separate and true record must be made for each person. Before BNSS implementation, Section 161(3) also expressly permitted recording by audio-video electronic means.
Statement of a woman in specified sexual offences
The second proviso to Section 161(3), as amended before the BNSS came into force, required the statement of a woman against whom any of the specified IPC offences was alleged to have been committed or attempted to be recorded by a woman police officer or any woman officer.
Is a Section 161 police statement signed by the witness?
No. Section 162 CrPC provided that a statement made to a police officer in the course of investigation, if reduced to writing, was not to be signed by the person making it. Section 162 also regulated the limited purposes for which such a statement could be used during inquiry or trial, including contradiction of a witness in accordance with the applicable law of evidence.
State amendments appearing with Section 161
Chhattisgarh
The State amendment substituted the second proviso to Section 161(3) and included additional specified IPC provisions. It also provided, as far as possible, for recording by a woman police officer, audio-video recording and steps to protect the identity of the woman. The amendment is identified as Chhattisgarh Act 25 of 2015, section 8.
Arunachal Pradesh
The Arunachal Pradesh amendment expanded the IPC section references in the second proviso to Section 161(3), including specified aggravated sexual offences. It is identified as Arunachal Pradesh Act 3 of 2019, section 14.
Related CrPC provisions
Section 160 CrPC - Police officer's power to require attendance of witnesses deals with requiring attendance during investigation. Section 162 CrPC - Statements to police not to be signed and use of statements in evidence deals with the restrictions applicable to statements recorded during police investigation.
CrPC and BNSS transition
The CrPC, 1973 was replaced for the new criminal-procedure regime by the Bharatiya Nagarik Suraksha Sanhita, 2023 with effect from 1 July 2024. Whether the CrPC continues to govern a particular pre-commencement investigation, inquiry, trial, appeal or other proceeding depends on the applicable statutory savings and the facts of the proceeding. This page therefore preserves the pre-BNSS Section 161 position rather than treating the BNSS as though it had applied retrospectively to every earlier matter.