Some points on Recording of Statements u/s 164 of the CrPC

• Section 164 of the CrPC concerns recording of statement of witnesses & confessions by the magistrate. The statement of witnesses under this section is recorded on oath.
• The underlying objective is to preserve evidence, get an account of testimony of the witness at the first instance and while it is still fresh, and to prevent retraction of testimony at a later stage.
• Another upside of a statement recorded u/s 164 of the Cr.P.C is that the same can be used for corroboration of the witness’s testimony at trial, thereby strengthening the veracity of prosecution case.
• Applications for recording of statement of witness u/s 164 Cr.P.C are usually filed by the prosecution/IO. In Jogendra Nahak  v. State of Orissa (2000) 1 SCC 272 – The Supreme Court has held that, all and sundry cannot approach the magistrate for recording of their statement u/s 164 and any witness, unsponsored by the IO/prosecution, cannot seek to get his examination recorded u/s 164 Cr.P.C.
• However, this view which has held primacy for long, can be taken to have been statutorily diluted in cases concerning crime against women. The amended Section 165(5A) of the Cr.P.C casts a duty on the magistrate to record the statement of the persons against whom such offence is committed, as soon as the commission of the offence is brought to the notice of the police., and this obligation is not contingent on the IO moving an application to that effect. In this regard, it would be incumbent on the area magistrate to be cognisant of such situations and pass the necessary orders to ensure examination of the witness promptly in such cases. Although, there is no direct decision on this point yet, however, on a purposive reading, the new amendments can be read to have carved out an exception to the rule of sponsorship of witness as a pre-requisite, in cases of women complaining of sexual assault, whose statement can be recorded even without sponsorship by the IO.
• However, the magistrate ought to be extremely careful as regards the identity of the witness/complainant before proceeding to record the statement. (Ajay Kumar Parmar v. State of Rajasthan (2012) 12 SCC 406)
• Another exception has been carved out by the Supreme Court in Mahabir Singh v. State of Haryana, AIR 2001 SC 2503 to the effect that an accused can approach the court with a request for recording of his confession, however in that situation, the magistrate has to ensure his identity as the accused and also the fact that investigation in that offence is currently underway, otherwise such statement shall not amount to a statement ‘in the course of investigation’ and therefore not a valid statement within the meaning of Section 164 of the Cr.P.C.
• The safeguards to ensure the voluntariness of a confession/statement made before the magistrate are too well established for reiteration. However, what deserves outlining is that in cases of rustic/illiterate and other vulnerable witnesses, the magistrate is duty bound to cull out the truth from the witness by asking the relevant questions.
• In cases of a child victims, the statement ought to be recorded in the special child witness /vulnerable witness room away from the grim dynamics of the court.
• The magistrate can take the aid of visual guides/diagrams and anatomically correct dolls with a view to ensure that the young witness, who might not be articulate or possess an adult vocabulary, is able to communicate and explain as to what happened.
• Section 25 of the POCSO(Protection of Children from Sexual Offences Act, 2012) also envisages the presence of a parent/support person with the victim at the time of recording of statement. There are similar safeguards in Section 164(5A) CrPC in cases of women victims of sexual assault.
• It also permits the services of a special educator/interpreter/translator to aid the judge to understand and record the statement better.(164(5A)(a)proviso of CrPC)
• Wherever possible, the magistrate must direct the IO to make the necessary arrangements for video recording of the statement. The expectation, therefore is, utmost sensitivity and responsiveness while recording the testimony of a vulnerable witness, with due regard to the trauma & stigmatic impact that the witness has undergone.

  See Exhaustive guidelines for various stakeholders with respect to recording of statements of vulnerable witnesses, laid down by the Hon’ble High Court of Delhi in Virender v. State of NCT of Delhi (Crl. A.No. 121/2008 – Date of Decision : 29.09.2009)