2. Presentation By
Maj Gen (Prof) Nilendra Kumar
Director
Amity Law School, Noida

3. 3rd Criminal Law Conference
14 and15 July 2016
at
Supreme Court Auditorium
Singapore

4. Criminal Law relates to a crime. It regulates social
conduct and prescribes whatever is threatening, harmful
or otherwise endangering to the property, health, safety
and moral welfare of people.
This presentation is in context of law as applicable to
India

5. Doctrine of Self Incrimination
Article 20(3):
No person accused of any offence shall be
compelled to be a witness against himself.

6. A fair trial by a neutral and fair counsel conducted so as
to allow each party the due procedural rights required by
the applicable law of a criminal trial where the
defendants’ constitutional rights are protected.

7. The procedure to enforce Law of Crimes is governed by
the Criminal Procedure Code, 1973 (as amended in 2013).
The statutory text duly supplemented by case law is
meant to govern the criminal law regime in India.

8. The very nature of law enforcement requires the
concerned officials to undertake a prompt, efficient and
fair probe.

9. Need fro pro-active and imaginative pre-trial
investigation, competent prosecution and efficient law
makers.

10. Probe or investigation would invariably involve
examination of the scene, exhibits and more
importantly recording of statements of witnesses
including suspects.

11. Eventually a suspect may, or may not, turn out to be, an
accused.

12. Suspect means a person thought to be guilty of a crime or
offence.
Synonyms-
1. Accused
2. Defendant

13. 1. Protect this crucial process from abuse.
2. Prevent false statements from being recorded.

14. According to Section 25 of The Indian Evidence
Act, 1872 : Even if a confession is voluntarily
made but to a Police officer, it would not be
admissible in evidence.

15. Criminal Procedure Code, 1973(as amended in 2005)
Sections 160, 161, 162 and 163

16. ◦ Sec 160- Police Officer’ power to require the attendance of
witnesses.
◦ Sec 161- Examination of witnesses by Police ( oral or
reduced to writing)
◦ Sec 162- Statement to Police not to be signed-use of
statement in evidence
◦ Sec 163- No inducement to be offered
◦ Sec 164- Recording of confessions and statements

17. Police Officer’s power to require attendance of
witnesses –
(1)Any Police Officer making an investigation under this
Chapter may, by order in writing, require the attendance
before himself of any person being within the limits of
his own or any adjoining station who, from the
information given or otherwise, appears to be
acquainted with the facts and circumstances of the case;
and such person shall attend as so required

18. Provided that no male person (under the age of fifteen
years or above the age of sixty five years or a woman or
a mentally or physically disabled person) shall be
required to attend at any place other than the place in
which such male person or woman resides

19. (2) The State Government may, by rules made in this
behalf, provide for the payment by the Police Officer of
the reasonable expenses of every person, attending under
sub-section (1) at any place other than his residence.

20. 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.
Contd/---

21. (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.
Contd/----

22. (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.

23. (Provided that statement made under this sub-section may also be
recorded by audio-video electronic means).
(Provided further that the statement of a women against whom an
offence under Section 354, Section 354A, Section 354B, Section
354C, Section 354D, Section 376, Section 376A, Section 376B,
Section 376C, Section 376D, Section 376E or Section 509 of the
Indian Penal Code is alleged to have been committed or attempted
shall be recorded, by woman police officer or any woman officer.

24. Statements to Police not to be signed : Use of statements in
evidence –
(1) No statement made by any person to a Police Officer in
the course of an investigation under this Chapter, shall, if
reduced to writing, be signed by the person making it; nor
shall any such statement or any record thereof, whether in
a police diary or otherwise, or any part of such statement
or record, be used for any purpose, save as hereinafter
provided, at any inquiry or trial in respect of any offence
under investigation at the time when such statement was
made.

25. Provided that when any witness is called for the prosecution in
such inquiry or trial whose statement has been reduced into
writing as aforesaid, any part of his statement, if duly proved, may
be used by the accused, and with the permission of the Court, by
the prosecution, to contradict such witness in the manner provided
by Section 145 of the Indian Evidence Act, 1872 (1 of 1872); and
when any part of such statement is so used, any part thereof may
also be used in the re-examination of such witness, but for the
purpose only of explaining any matter referred to in his cross-
examination.

26. (2) Nothing in this section shall be deemed to apply to any
statement failing within the provisions of clause (1) of
Section 32 of the Indian Evidence Act, 1872 (1 of 1872),
or to affect the provisions of Section 27 of that Act.
Contd/---

27. Explanation – An omission to state a fact or
circumstance in the statement referred to in sub-section
(1) may amount to contradiction if the same appears to
be significant and otherwise relevant having regard to
the context in which such omission occurs and whether
any omission amounts to a contradiction in the
particular context shall be a question of fact.

28. No inducement to be offered –
(1) No Police Officer or other person in authority shall offer or
make, or cause to be offered or made, any such
inducement, threat or promise as is mentioned in Section
24 of the Indian Evidence Act, 1872 (1 of 1872).
Contd/---

29. (2) But no Police Officer or other person shall prevent, by
any caution or otherwise, any person from making in the
course of any investigation under this Chapter any
statement which he may be disposed to make of his own
free will.
Provided that nothing in this sub-section shall affect the
provisions of sub-section (4) of Section 164.

30. Recording of confessions and statements –
(1) Any Metropolitan Magistrate or Judicial Magistrate
may, whether or not he has jurisdiction in the case,
record any confession or statement made to him in the
course of an investigation under this Chapter or under
any other law for the time being in force, or at any time
afterwards before the commencement of the inquiry or
trial.

31. (Provided that any confession or statement made under this sub-
section may also be recorded by audio-video electronic means in
the presence of the advocate of the person accused of an offence.
Provided further that no confession shall be recorded by a Police
Officer on whom any power of a Magistrate has been conferred
under any law for the time being in force).
Contd/---

32. (2) The Magistrate shall, before recording any such
confession, explain to the person making it that he is not
bound to make a confession and that, if he does so, it may
be used as evidence against him and the Magistrate shall
not record any such confession unless, upon questioning
the person making it, he has reason to believe that it is
being made voluntarily.
Contd/---

33. (3) If at any time before the confession is recorded, the person
appearing before the Magistrate states that he is not willing
to make the confession, the Magistrate shall not authorize the
detention of such person in Police custody.
Contd/---

34. (4) Any such confession shall be recorded in the manner provided in
Section 281 for recording the examination of an accused person
and shall be signed by the person making the confession; and the
Magistrate shall make a memorandum at the foot of such record to
the following effect:-
“I have explained to (name) that he is not bound to make a
confession and that, if he does so, any confession he may make,
may be used as evidence against him and I believe that this
confession was voluntarily made. It was taken in my presence and
hearing, and was read over to the person making it and admitted
by him to be correct, and it contains a full and true account of the
statement made by him.”

35. RELEVENT CASE LAW
The judicial approach has led to creation of provisions helpful to
law enforcement and serve as reasonable safeguards.

36. Article 20(3) aims to prevent the forcible conveyance of personal
knowledge that is relevant to the facts in issue. The results
obtained from involuntary administration of certain scientific
techniques, namely narco analysis, polygraph examination and
the Brain Electrical Activation Profile (BEAP) bear a testimonial
character and they cannot be categorised as material evidence.
Selvi V State of Karnataka,2010 SC 1974

37. “Any person” as mentioned in Section 160 means and
includes “any accused person,” and they can be
summoned to appear as witnesses.

38. During the course of interrogation, the accused is
entitled to have service of a lawyer of his choice.

39. A person below 15 years of age, or above 65, a woman or a
mentally or physically disabled person shall not be required to
attend any place other than the place in which such person
resides.

40. Statements recorded by Investigation Officer of persons
residing outside India fall very much within the scope of
the world “investigation.”
Vinod Kumdi Jain V State through CBI;1991 Cri LJ 669

41. Statement of witness need not be recorded in language
known to the person giving the statement.
Zahira Habibullah H Sheikh V State of Gujarat;
AIR 2004 SC 3114

42. Prompt investigation substantially eliminates chances of
adulterated account creeping in the testimony of witnesses.

43. Statements to Police are not to be signed :Use of
Statements in Evidence.
The object is to protect the accused both against over
zealous Police officers and untruthful witnesses.

44. 1. Witness cannot be compelled to make a statement
2. Statement has to be voluntary.
3. Statement is not to be signed.
4. Not admissible as evidence

45. While statement of a witness examined and recorded by a
Police Officer is not to be signed by the witness, it is
misused in following ways-
(i) Often IO writes down a statement without even
examining the witness. This is done either to support
the case diary or with an ulterior motive.
(ii) The courts often ignore such statements.

46. The defence can make use of it to bring out a
contradiction.

47. 1. Evidence of material witness must be recorded by a
Judicial Magistrate.
2. Also in cases where there appears a possibility of his
turning hostile

48. However, the 14th Law Commission and Malimath
Committee have recommended that the statements be
signed by the witness so that the responsibility for the
same devolves upon them.
However, the provisions are still to be amended.

49. Serious crimes against global peace and
security.
1. Acts of global terror
2. Drugs
3. Illicit arms trade
4. Trafficking in persons
5. Counterfeit currency
6. Cyber crimes
7. Piracy

50. The conspiracy and offenders may be spread over many
jurisdictions and thereby may complicate investigation
and prosecution.

51. SUGGESTIONS
AND
RECOMMENDATIONS

52. 1. Multilingual experts
2. Audio video recordings. If this entails huge expenses,
then do it in all serious offences (say carrying seven
years RI or above).
3. Presence of independent witnesses
4. Raise the level to not below Sub Inspector of Police
5. Turning approver be encouraged
6. If changes in law is time consuming then take recourse to
Mutual Legal Assistance Treaties

53. The term “Police officers” should include any official
entrusted with public security eg. military police, coast guard,
border patrols and custom officials etc.

54. CrPC was designed on the model of UK Law.
The latter has since undergone change and now provides
the statement to be signed and makes it admissible in
evidence.

55. Even a few other legal regimes permit statements to be
signed and make them admissible as evidence before the
courts of law.

56. Section 50(8)(c) empowers an Asst. Director or wild Life
Warden to receive and record evidence.

57. Section 53 – Investigating officers of certain department
with powers of an officer-in-charge of a Police Station

58. 1. Develop International Criminal Law
2. Expand number of core crimes under the ICC statute.
3. Set up training institutions for professionals needed to
combat this threat to global peace and security.

59. THANK YOU