S. 164 Cr.P.C. and Some Challenges

 

S. 164 (1) -Note.

S. 164 Cr.P.C reads as follows:

"(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:

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:"

The proviso was added by the Criminal Procedure Code (Amendment) Act, 2008, which came into effect on 31.12.2009.

Understanding the Proviso: The proviso has two aspects: (1) confession or statement made under the subsection may also be recorded by audio-video electronic means (2) in the presence of the advocate of the person accused of an offence.

"May also be recorded by audio video electronic means": One doubt may arise, whether the expression "may also be recorded" means "in addition to" or it is intended to mean "in the alternative". More over there is no clear definition of audio-video electronic means either in Cr.P.C. or in any other statute. Grammatically, and contextually the words "may also" can mean both these expressions. In order to understand the import of the phrase "may also be recorded" we need to examine which all provisions in Cr.P.C. have a similar wording. The proviso to S. 164(1) Cr.P.C. was introduced vide Criminal Procedure Code (Amendment) Act, 2008. The said Act also made similar amendments in S. 161 and S. 275 Cr.P.C.

A tabular comparison of the words in these three sections are as under:

S.161	s.164	S.275
(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.	(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:	(1) In all warrant-cases tried before a Magistrate, the evidence of each witness shall, as his examination proceeds, be taken down in writing either by the Magistrate himself or by his dictation in open Court or, where he is unable to do so owing to a physical or other incapacity, under his direction and superintendence, by an officer of the Court appointed by him in this behalf:
Provided that statement made under this sub-section may also be recorded by audio-video electronic means.	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 that evidence of a witness under this sub- section may also be recorded by the audio-video electronic means in the presence of the advocate of the person accused of the offence."

S. 161 Cr.P.C. speaks about "reduce into writing" and "separate and true record", S. 275 Cr.P.C. mentions "take down in writing" and S. 164 Cr.P.C. mentions about "record confession and statement".

A perusal of the object and reasons of the Criminal Procedure (Amendment) Bill, 2006 would show that the purpose of introduction of these provisions are mentioned as follows:

"The application of technology in investigation, inquiry and trial is expected to reduce delays, help in gathering credible evidences, minimise the risk of escape of the remand prisoners during transit and also facilitate utilisation of police personnel for other duties."

Viewed in the light of the object of introduction of these proviso, it is cannot be reasonably said that the legislature intended these new provisions to act as additional requirements to the present mode of recording of evidence. These clauses have no application regarding minimisation of risk of escape of remand prisoners and in facilitating utilisation of police personnel for other duties. The only reasonable interpretation is that the purpose of the legislature in introducing this provision was to ensure reduction of delay and increase credibility of evidence recording process by recording evidence with audio video electronic means instead of manually recording the same by pen on paper.

This position is also buttressed by fact that elsewhere in Cr.P.C., where ever, the additional means for enhancing credibility by video recording is required in addition to normal process, the words video graphs have been used. For example, S. 164(5A) second Proviso which reads as follows:

"Provided further that if the person making the statement is temporarily or permanently mentally or physically disabled, the statement made by the person, with the assistance of an interpreter or a special educator, shall be video-graphed."

The other provisions where the words "video-graphed” are used are Ss. 54A¹, S. 154 (1) Second Proviso (b)², Cr.P.C. In all these provisions, the words process shall be video-graphed or recording shall be video-graphed is used. When Cr.P.C. itself uses a distinct term for "video-graphy" in addition to the normal process, it cannot be assumed that the words "audio video electronic means" would mean the same thing.

Further, the enabling section for S. 164(5A) Cr.P.C. is S. 164(1) Cr.P.C. If the words "audio-video electronic means" was used to mean an additional process, then there was no requirement of another provision in S. 164(5A) which requires the statement to be video-graphed".

Another question is whether the words audio video electronic means would mean producing the person through video conferencing. If it be so, then it would mean that only in case where the statement is recorded when the deponent appears before the court through video conferencing, the presence of counsel for the accused is to be ensured. However it can be seen that in S. 167(2) (b)³ Cr.P.C and in Explanation II⁴ to said section, the words either in person or “ through the medium of electronic video linkage” is used to denote production of person through video conferencing. As in the case of the word, “video-graphed”,when Cr.P.C. itself uses the words "medium of electronic video linkage" for production through video conferencing mechanism, there is no reason to assume that "audio-video electronic means" would mean the same as "medium of electronic video linkage" in s. 167 Cr.P.C.

This view is supported by judicial decisions also. The Hon'ble High Court of Utharanchal in Pradhuman Bisht v. State Of Uttarakhand And Another⁵ has considered the scope of the words "audio video electronic means and held held as follows:

"Proviso to sub-section (1) of Section 275 Cr.P.C. was introduced by Act 5 of 2009 w.e.f. 31.12.2009. It says about recording of evidence by audio-video electronic means in the presence of the advocate of the person accused of the offence. The recording of evidence of a witness by audio-video electronic means is discretionary and not mandatory. Moreover, the proviso deals with recording of evidence by audio-video electronic means, and not with video recording and, therefore, learned trial court did not commit any illegality while passing the impugned order, howsoever justified the apprehension or anguish of the accused-applicant might be."(Emphasis supplied).

The Hon'ble Supreme Court also had occasion to consider the term "by audio video electronic means in the presence of counsel for accused" appearing in S. 164(1) Cr.P.C in Manoharan v. State By Inspector Of Police⁶, wherein the three judge bench of Hon'ble Supreme Court, speaking through Jus. Rohington Nariman held as follows:

“The plea regarding absence of a counsel during proceedings before the Magistrate under section 164, CrPC resulting into any prejudice, are misconceived. What mandatorily is needed, as noted earlier, is that the Magistrate must satisfy himself of the voluntariness of the statement and all the statutory safeguards which includes bringing the repercussions and the voluntariness of making confessions to the knowledge of the accused, must be meticulously complied with. It is pertinent to take note of the first Proviso to Section 164(1), added with effect from 31.12.2009, which specifies that:

“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.” (emphasis supplied)

Section 164 of the Code thus does not contemplate that a confession or statement should necessarily be made in the presence of the advocate(s), except, when such confessional statement is recorded with audio-video electronic means."(Emphasis supplied)

These two decisions recognises the discretion of the court to record the statements either in audio-video electronic means or otherwise. From these two decisions, it can seen that the words "audio-video electronic means" is used in S. 164 (1) Cr.P.C. as denoting an alternative mode of recording such statements using pen and paper and not in addition to such recording.

Thus,the words "may also be recorded" is used in the sense"in the alternative" rather than "in addition to". Further, it can be seen that the term audio-video electronic means” does not indicate video-graphing of the normal process or producing the accused through video conferencing mechanism, as distinct terms are used in Cr.P.C. itself to denote such processes was introduced through the same Amendment Act. The said term can only mean recording the statement/depositions with a system which captures audio and video in an electronic means such as using a digital camera which records audio and video on a memory card or a hard disk, creating, processing and storing, the audio and video input and output in an electronic form, instead of writing down the statement or deposition on a paper using a pen.

(2) "in the presence of the advocate of the person accused of an offence.": This brings us to the next question, whether the presence of counsel for the accused is mandatory, if the court opts to record the statement under S. 164 Cr.P.C. by audio video electronic means.

It is pertinent to note that the in the Malimath Committee Report⁷ has recommended as follows:

"Audio/video recording of statements of witnesses, dying declarations and confessions should be authorized by law." and that,

Section 25 of the Evidence Act may be suitably amended on the lines of Section 32 of POTA 2002 that a confession recorded by the Supdt. of Police or Officer above him and simultaneously audio / video recorded is admissible in evidence subject to the condition the accused was informed of his right to consult a lawyer."

The purpose of this recommendation is as given in the report of the committee as follows:

"Frequent changes in statements by the witnesses during the course of investigation and, more particularly, at the trial are really disturbing. This results in miscarriage of justice. Hence, modern science and technology should be harnessed in criminal investigation. Tape recording or video recording of statements of witnesses, dying declarations and confessions would be a meaningful and purposive step in this direction. Unfortunately, the existing law does not provide for it. It is understandable as these facilities did not exist at the time when the basic laws of the land were enacted. Now that these facilities are available to the investigating agency, they should be optimally utilised."

Thus it can be seen that the requirement of presence of counsel for the accused was recommended by this committee only in cases where the confession is recorded by a Superintendent of Police or Officer above him and simultaneously audio/video recorded, and not in other circumstances. In view of the decision of Constitutional Bench of the Hon'ble Supreme Court in Kalpana Mehta and others v. Union of India and others⁸, the report of the parliamentary standing committee can be taken aid of for the purpose of interpretation of a statutory provision, wherever it is so necessary and also can be taken note of as existence of a historical fact. In the One Hundred and Twenty Eighth Report on The Code of Criminal Procedure (Amendment) Bill, 2006 of Department Related Parliamentary Standing Committee on Home Affairs, the Parliamentary Affairs Committee had dealt with the specific amendments in S. 161, 164 and 275 Cr.P.C and in S. 167 Cr.P.C, in the following way:

"4.8.1 It has been proposed in the Bill vide clause 16 that the Magistrates may extend detention of an accused in judicial custody through the medium of electronic video linkages except for the first time where the production of the accused in person is required. Enabling provisions for video recording of statement of witnesses before police and magistrates are also introduced in the Bill vide clause 12, 14 and 27 by inserting new proviso to Section 161, Section 164 and Section 275 of Cr. PC.

4.8.2 Views of Members/witnesses :

(i) Person in judicial custody during video conferencing cannot explain whatever he wants to say had he appeared before the judge;

(ii) Recording of statement through audio/video electronic means can be misused;

(iii) The provision of video linkages should not be implemented unless a foolproof system is in place to ensure that the statement by the witness is made voluntary; and

(iv) An advocate will become a witness if he remains present during video conferencing. Then he cannot appear as an advocate.

Hence, the amendment is totally opposed."

Despite such objections, the Code of Criminal Procedure (Amendment) Act, 2006 was passed into legislation. However these objections are still valid.

Judicial decisions regarding the presence of Advocate during the stage of recording statement of accused under S. 164 Cr.P.C. are sparse. Even though the Hon'ble Supreme Court was seized of this question in Manoharan v. State, By Inspector of Police(Supra), the court only stated that S. 164 Cr.P.C. does not contemplate that a confession or statement should necessarily be made in the presence of the advocate(s) except when such confessional statement is recorded with audio video electronic means. What the court was essentially stating is that if the statement or confession under S. 164 Cr.P.C. is recorded by writing with pen on paper, the presence of the counsel for the accused is not mandatory. Before concluding that if the statement of the witness is recorded with audio-video electronic means, the presence of accused is mandatory, we need to understand the legislative history of S. 164 Cr.P.C. The same was discussed in Murugaswamy v. State and Another⁹ as follows:

"Thus, a reading of the provisions of Regulation VI of 1802 and Regulation XI of 1816 shows that the police and the Magistrates were working in tandem in the investigation of offences. On 01.01.1862, the Indian Penal Code, 1861 and the Code of Criminal Procedure, 1861, came into force under which the police and the Magistrates continued to work together in unison. Their functions often overlapped with each other. Hence, the 1861 Code of Criminal Procedure did not make a clear distinction between the terms "statement" and "evidence", as could be seen from the wordings of S.194, which contemplated recording of statement of witnesses in the presence of the accused. Only in the 1872 Code, the presence of the accused for recording the statement of a witness during investigation was dispensed with. In the 1882 Code, S.164 read as under:

"164. Power to record statements and confessions: Any Magistrate not being a police officer may record any statement or confession made to him in the course of an investigation under this chapter, or at any time afterwards before the commencement of the inquiry or trial. "

...Since 1882, in all the subsequent Codes, we have been following the same template upto the present Code, viz., the 1973 Code, of course, with some variations in individual provisions. We are emphasising this to show that after the repeal of the 1861 Code, there has been a slow and steady separation of the police from the Magistracy and after the Constitution of India came into force, in tune with Art.50, the present 1973 Code has completed the separation between the functions of the police and the Magistracy."

Thus, it can be seen that till the Criminal Procedure Code of 1882, the requirement was to record the statement of witnesses in the presence of the accused. The said position, which was altered in 1882 was brought back to the original position by the Criminal Procedure Code(Amendment) Act, 2006. A perusal of the tabular comparison of S. 161, 164 and 275 Cr.P.C. which were introduced by the said Amendment Act would show that the specific requirement under the proviso to S. 164(1) Cr.P.C. is (a) not the presence of the accused but the counsel for the accused and (b) the requirement of presence of counsel for accused is altogether absent in the proviso introduced in S. 161 Cr.P.C.. Comparing S. 164(1) and S. 275 of Code of Criminal Procedure, 1973 with S. 25(1) Proviso¹⁰ to Protection of Children from Sexual Offences Act, 2012,(POCSO Act), it can be seen that the provision which permits the presence of the counsel for the accused at the time of recording of evidence under S. 275 Cr.P.C and also confession and statement under S. 164 Cr.P.C, if done by "audio visual electronic means" is purposefully incorporated. Comparing S. 274 and S. 276 Cr.P.C. with S. 275 Cr.P.C. (where this amendment has been effected) would show that this amendment, including the requirement for presence of counsel for the accused is applicable only in warrant cases tried before a Magistrate and not in inquiries, summons trial or in Sessions trial. Further, an amendment is introduced in S. 242 Cr.P.C. In addition to the requirement under S. 207 Cr.P.C., a new proviso has been added to S. 242 Cr.P.C. which reads as follows:

"Provided that the Magistrate shall supply in advance to the accused, the statement of witnesses recorded during investigation by the police."

This would show that the intention of legislature in introducing the amendments in S. 242 and S. 275 Cr.P.C. was to amend the procedure for trial of warrant cases triable by Magistrate alone to ensure a more justiciable approach towards the accused.

However, the amendment to S. 164 Cr.P.C. is in a different footing until one reads S. 164(4) and S. 164(5) Cr.P.C. the relevant portion of which are extracted as follows:

“(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;

(5) Any statement (other than a confession) made under sub-section (1) shall be recorded in such manner hereinafter provided for the recording of evidence as is, in the opinion of the Magistrate, best fitted to the circumstances of the case; and the Magistrate shall have power to administer oath to the person whose statement is so recorded.”

Thus, it can be seen that S.164 (4) and (5) makes a clear distinction between the manner of recording (a) Confessions and (b) Other statements. The manner of recording confession is by following the procedure under S. 281 Cr.P.C. and the manner of recording other statement is in either of the manners provided under S. 274,275 or 276 Cr.P.C.

Confession can be made only by a person accused of an offence. However, in the case of other statements there are two possibilities (a) a statement made by the an accused but not amounting to confession and (b) a statement made by any other witness. So far as the requirement for presence of counsel for the accused is concerned, there would be no confusion in the case of confessions or statement of the accused. Rule 70(6) of Kerala Criminal Rules of Practice,1982 provides that "The Magistrate shall record the Confession or statement of an accused in open court and during court hours save for exceptional purposes.". Thus if the confession or statement of the accused has to be recorded in open court, the presence of the counsel for the accused can also not be disallowed.

However, the rules does not speak about the manner of recording statement of other witnesses. Rule 71 only speaks about how the requisition under S. 164 Cr.P.C.is to be made by Police Officers and Rule 71 (2) speaks about the need for preparing the statement in duplicate,retaining one copy after duly entering the same in Administrative Form no.46. In order to have better clarity regarding the manner of recording statement of other witnesses, it is pertinent to peruse the decision of the Hon'ble Supreme Court in Doongar Singh & Others v. State of Rajasthan¹¹ where in the following directions were issued to the trial courts after finding as follows:

"It is also necessary that the statements of eye - witnesses are got recorded during investigation itself under S.164 of the Cr.P.C. In view of amendment to S. 164 Cr.P.C. by the Act No. 5 of 2009, such statement of witnesses should be got recorded by audio - video electronic means.

(i) The Trial Courts must carry out the mandate of S.309 of the Cr.P.C. as reiterated in judgments of this Court, inter alia, in State of U. P. v. Shambhu Nath Singh and Others, 2001 KHC 377 : 2001 (4) SCC 667 : 2001 (2) KLT 159 : 2001 SCC (Cri) 798 : AIR 2001 SC 1403 : 2001 All LJ 835 : 2001 CriLJ 1740, Mohd. Khalid v. State of W. B., 2002 KHC 1356 : 2002 (7) SCC 334 and Vinod Kumar v. State of Punjab, 2015 KHC 4054 : 2015 (3) SCC 220 : 2015 (1) KHC SN 17 : 2015 (1) KLD 399 : 2015 (1) KLT SN 114 : AIR 2015 SC 1206 : 2015 CriLJ 1442.

(ii) The eye - witnesses must be examined by the prosecution as soon as possible.

(iii) Statements of eye - witnesses should invariably be recorded under S. 164 of the Cr.P.C. as per procedure prescribed thereunder. (Emphasis supplied)"

In order to follow the mandate of this decision, extensive use of recording with audio-video electronic means have to be made. However, if it is taken that the essence of the decision of Hon'ble Supreme Court in Manoharan v. State By Inspector Of Police (Supra) is that if the court decides to record the statement with audio video electronic means, then the presence of the counsel for the accused is mandatory, it could give rise to certain anomalous situations. There could be situations where a statement under S. 164 Cr.P.C. is recorded even before the accused is identified or apprehended. In some cases, such statement will be recorded even before the accused has appointed a lawyer. If it has to be taken that the statement under S. 164 (1) Cr.P.C. can only be recorded after the accused appoints a lawyer, then the intention of the legislature in avoiding delay cannot be achieved. The intention of the legislature cannot be that the investigation agency/court will have to wait till the accused appoints a counsel to defend himself to record the statement under S. 164 Cr.P.C., especially since there is a mandate under S. 164(5A) Cr.P.C. to record the statement of the victim, immediately upon the detection of the case.

Hon'ble Supreme Court in State of Karnataka by Nonavinakare Police v. Shivanna @ Tarkari Shivanna¹² has held as follows:

"What we wished to emphasise is that the recording of evidence of the victim and other witnesses multiple times ought to be put to an end which is the primary reason for delay of the trial. We are of the view that if the evidence is recorded for the first time itself before the Judicial Magistrate under S.164 Cr.P.C. and the same be kept in sealed cover to be produced and treated as deposition of the witnesses and hence admissible at the stage of trial with liberty to the defence to cross - examine them with further liberty to the accused to lead his defence witness and other evidence with a right to cross - examination by the prosecution, it can surely cut short and curtail the protracted trial if it is introduced at least for trial of rape cases which is bound to reduce the duration of trail and thus offer a speedy remedy by way of a fast track procedure to the Fast Track Court to resort to."

This decision is in tandem with the objects and reasons of the Criminal Procedure Code(Amendment) Act, 2006 which introduced the amendments in S. 161, 164 and 275 Cr.P.C. This decision also imposes a time limit of 24 hours for taking the victim to the Magistrate on the police officer. Hence, it cannot be taken that the legislature intended to record the statement of witnesses multiple times or to wait till the accused is apprehended and he appoints a counsel. The Constitution of India vide Art. 21 also recognizes the right of a person to choose not to be represented by any counsel at all. It is also to be noted that as distinct from the wording of 1861 Code, which required the presence of accused at the time of recording of statement, the present proviso requires only the presence of Counsel for the accused and not that of the accused in person.

However, the provisions of S. 164(5) Cr.P.C. throws further light into the intention of the legislature regarding the presence of the counsel. Recording of statements (other than a confession) under S. 164 Cr.P.C. is to be done "in such manner hereinafter provided for the recording of evidence as is, in the opinion of the Magistrate, best fitted to the circumstances of the case.". Thus, even though the Magistrate is given a discretion to choose the appropriate manner provided for the recording of evidence, his choices are limited: the magistrate can adopt either the procedure in S. 275 Cr.P.C. or he can opt for the procedure under S. 274 or 276 Cr.P.C. It can be seen that the manner of “recording of statement in audio-video electronic means in the presence of counsel for the accused” is not introduced in S. 274 or S. 276 Cr.P.C. If the magistrate adopts the procedure under S. 275 Cr.P.C., then considering the amendment in both these sections, the presence of counsel for the accused has to be allowed. In other cases, where the Magistrate opts for procedure under S. 274 or 276 Cr.P.C., this requirement will not be there. Another question is what is the criteria for selecting the procedure? The wording of S. 164(5) Cr.P.C. has given the Magistrate the discretion to choose the procedure which "in the opinion of such Magistrate, best fitted to the circumstances of each case". The circumstances of the case would also include infrastructural and statutory limitations of the court in recording the statement purely by audio video electronic means without having to record the same in writing. S. 164(5) Cr.P.C. also permits the Magistrate to use his discretion on a case by case basis. Moreover, at present, the requirement of recording the statement with "audio video electronic means" is also purely optional, since even though there is a direction of Hon'ble Supreme Court in Doongar Singh & Others v. State of Rajasthan (Supra), the facilities for recording the statement exclusively using audio video electronic means is not provided in all courts, and the Criminal Rules of Practice, 1982, in so far as it requires in Rule 57 that "after a deposition has been read over to the witness, the last page thereof shall be signed in full by him", does not permit the recording of statements exclusively by audio-video electronic means. In such circumstances, the Magistrate has to choose between the procedure under S. 274, 275 devoid of audio video electronic means" or S. 276 Cr.P.C. to be followed in recording the statement under S. 164(1) Cr.P.C. In neither of the cases, the presence of counsel for the accused is not an essential mandate.

Further, even though right to legal services is interpreted as a facet of Art. 21 of the Constitution of India, the same has not been held to be an indefeasible right. The clause in the presence of the counsel for the accused can be understood only as a right available to the accused in cases where the accused has already appointed a counsel at the time of recording of statement under S. 164 Cr.P.C. and has indicated to the court in clear terms that such counsel is authorised to be present at the time of such recording. Otherwise, the purpose of introduction of this proviso ie for reducing delays will be defeated and the statement will have to be recorded multiple times. Moreover, this will go against the spirit of the decision of Hon'ble Supreme Court in State of Karnataka by Nonavinakare Police v. Shivanna @ Tarkari Shivanna (Supra) regarding non disclosure of contents of such statement under S.164 CrPC to any person till charge - sheet / report under S.173 CrPC is filed, and that of Hon'ble High Court of Kerala in Varghese M.U. v. Central Bureau of Investigation, Cochin¹³ wherein after refering to decision of Hon'ble Supreme Court in Sunita Devi v. State of Bihar¹⁴, Full Bench of Hon'ble High Court of Madras in State of Madras v. G. Krishnan¹⁵, Division Bench of Hon'ble Bombay High Court in Maria Monica Susairaj v. State of Maharashtra¹⁶, it was held that:

"Disclosing the evidence collected by the Investigating Officer before the report under S.173(2) CrPC is filed will be detrimental to the investigation and is against public interest. It is necessary to ensure confidentiality of the statement, failing which it may hamper the investigation and may afford opportunity to those who are involved in the commission of the offences to abscond, or to destroy or tamper with the evidence, or to influence or to threaten the witnesses. The conclusion, I can reach, is that the proceedings in which statement under S.164(1) CrPC of an accused which does not amount to confession, or of a person other than the accused is recorded shall be conducted in camera and a copy of it shall not be given to anyone other than the Investigating Officer, who may require it for his investigation -- until and unless it is made public by him by making it part of the records of the case without any reservation. The Investigating Officer shall not directly or indirectly disclose its contents or issue its copy if it is against public interest. Indiscriminate disclosure of its contents by the Investigating Officer should be avoided."

In view of the above, it is clear that there was no intention of the legislature to invalidate statements under S. 164 Cr.P.C. which is not recorded in the presence of counsel for the accused. It can also be seen that if the provision "in the presence of counsel for the person accused on an offence" is interpreted as an indefeasible right of the accused, the provisions of S. 164 Cr.P.C. and the spirit of the decision of Hon'ble Supreme Court cannot be given effect to. Hence, the only interpretation of the proviso to S. 164(1) Cr.P.C can be as " if the accused is known, has appointed a counsel and is available for informing the right, and on being so informed, has opted to choose to exercise such right, provided in the circumstances of the case, the magistrate chooses to record the evidence in accordance with S. 275 Cr.P.C. with audio video electronic means and not otherwise".

Guidelines to record statements under S. 164 Cr.P.C.:

In exercise of the powers of Hon'ble Supreme Court under Art. 142 of Constitution of India, the following guidelines were issued by the Hon'ble Supreme Court in State of Karnataka by Nonavinakare Police v. Shivanna @ Tarkari Shivanna (Supra) taking into consideration the above reasoning also:

"We are pleased to issue interim directions in the form of mandamus to all the Police Station in charge in the entire country to follow the direction of this Court which are as follows:

(i) Upon receipt of information relating to the commission of offence of rape, the Investigating Officer shall make immediate steps to take the victim to any Metropolitan / preferably Judicial Magistrate for the purpose of recording her statement under S.164 CrPC. A copy of the statement under S.164 CrPC should be handed over to the Investigating Officer immediately with a specific direction that the contents of such statement under S.164 CrPC should not be disclosed to any person till charge - sheet / report under S.173 CrPC is filed.

(ii) The Investigating Officer shall as far as possible take the victim to the nearest Lady Metropolitan / preferably Lady Judicial Magistrate.

(iii) The Investigating Officer shall record specifically the date and the time at which he learnt about the commission of the offence of rape and the date and time at which he took the victim to the Metropolitan / preferably Lady Judicial Magistrate as aforesaid.

(iv) If there is any delay exceeding 24 hours in taking the victim to the Magistrate, the Investigating Officer should record the reasons for the same in the case diary and hand over a copy of the same to the Magistrate.

(v) Medical Examination of the victim: S.164 A CrPC inserted by Act 25 of 2005 in CrPC imposes an obligation on the part of Investigating Officer to get the victim of the rape immediately medically examined. A copy of the report of such medical examination should be immediately handed over to the Magistrate who records the statement of the victim under S.164 CrPC."

It is particularly clear from the emphasized portion that the directions in the above case was "to all police station in charge" and not to magistrates. It is also clear that the direction is only to "make immediate steps to take the victim" to the Judicial Magistrate for the purpose of recording the statement" and " if there is delay exceeding 24 hours in "taking the victim to the Magistrate" the investigating officer should record the reasons for the same. The said judgement does not give any direction to the Magistrate to record the statement as soon as the victim is taken to such magistrate.

No further directions have been issued by Hon'ble High Court of Kerala regarding the manner in which a statement under S. 164(5A) Cr.P.C. is to be recorded.

The Hon'ble High Court of Madras in Murugaswamy v. State and Another(Supra) has also extensively come up with directions regarding the manner in which statements and confessions are to be recorded under S. 164 Cr.P.C. after considering the legislative history of S. 164 Cr.P.C. The following directions were issued in the said case regarding statements under S. 164 Cr.P.C.:

1. A statement of a witness / victim can be recorded under S.164, Cr.P.C. only at the instance of the Investigating Officer of the case. (See also Jogendra Nahak v. State of Orissa (AIR 1999 SC 2565) wherein it was held that the Magistrate has no power to record the statement of a witness under S. 164(1) Cr.P.C. who is not sponsored by the investigating agency).

2. It is not necessary for the Investigating Officer to approach the CMM / CJM with an application for nominating a Magistrate to record the statement of a witness / victim under S.164, Cr.P.C.

3. A Magistrate, whether he has got jurisdiction or not, to inquire into or try the case, can record the statement of a witness / victim under S.164, Cr.P.C., on the request of the Investigating Officer of the case.

4. The Presiding Officer of a Special Court which has been empowered to take cognizance of an offence without there being a need for committal may also record the statement of a witness / victim under S.164, Cr.P.C., on the request of the Investigating Officer of the case.

5. After recording the statement of a witness / victim under S.164, Cr.P.C., the Judge / Magistrate shall arrange to take two photocopies of such statement, under his direct supervision and certify the same as true copies.

6. He shall furnish one such certified photocopy of the statement to the Investigating Officer, free of cost, immediately, with a specific direction to the latter to use it only for the purpose of investigation and not to make its contents public, until the investigation is completed and final report filed. (See also State of Karnataka by Nonavinakare Police v. Shivanna @ Tarkari Shivanna (Supra))

7. The other certified photocopy of such statement shall be kept in a sealed cover in the safe custody of the Judge / Magistrate.

8. If the Magistrate who had recorded the S. 164, Cr.P.C. statement is not the jurisdictional Magistrate, he shall send the original statement to the jurisdictional Court, either through a special messenger or by registered post with acknowledgment due.

9. If the Judge / Magistrate who had recorded the 164, Cr.P.C. statement is himself the jurisdictional Magistrate, he shall keep the original of the statement in the case records.

Similarly with respect to the recording of confessions under S. 164 Cr.P.C., the following directions were issued:

1. The Investigating Officer shall make an application before the CMM / CJM for nominating a Magistrate, other than the jurisdictional Magistrate, to record the confession statement of an accused.

2. After recording the confession statement of an accused, the recording Magistrate shall arrange to take two photocopies of the same under his direct supervision and certify the same as true copies.

3. The confession statement, in original, shall be sent in a sealed cover to the jurisdictional Magistrate or Court, as the case may be, through a special messenger or by registered post with acknowledgment due.

4. One certified copy of the confession statement shall be immediately furnished to the Investigating Officer, free of cost, with a specific direction to him, to use it only for the purpose of investigation and not to make its contents public, until the investigation is completed and final report filed.

5. The other certified photocopy of the confession statement shall be kept in a sealed cover in the safe custody of the recording Magistrate.

Regarding recording of dying declarations,which in essence is only a statement under S. 164 Cr.P.C., the following directions were issued:

1. After recording the dying declaration, the Magistrate shall arrange to take two photocopies of the same under his direct supervision and certify the same as true copies.

2. The dying declaration in original shall be sent in a sealed cover to the jurisdictional Magistrate or Court, as the case may be, through a special messenger or by registered post with acknowledgment due.

3. One such certified photocopy of the dying declaration shall be furnished by the Magistrate to the Investigating Officer of the case free of cost, immediately, with a specific direction to the latter to use it only for the purpose of investigation and not to make its contents public, until the investigation is completed and final report filed.

4. The other certified photocopy of the dying declaration shall be kept in a sealed cover in the safe custody of the Magistrate.

With respect to Test Identification Parades, the following directions were issued:

1. An application for conduct of Test Identification Parade, shall be made under S.54 - A of the Code by the Investigating Officer, to the Court having jurisdiction.

2. On such application being made, the Court may direct the person so arrested to subject himself to identification.

3. The Court shall make a request to the CMM / CJM of the District to nominate a Magistrate, other than the Magistrate who has jurisdiction of the case, to conduct the Test Identification Parade.

4. Upon receipt of such request, the CMM / CJM shall immediately pass orders nominating a Magistrate, other than the jurisdictional Magistrate, to conduct Test Identification Parade and inform the same to the Magistrate so nominated and to the Investigating Officer.

5. The Magistrate so nominated shall conduct Test Identification Parade and after preparing the Test Identification Parade report, he shall arrange to take two photocopies of the said report under his direct supervision and certify the same as true copies. . He shall send the Test Identification Parade report in original in a sealed cover to the jurisdictional Court through a special messenger or by registered post with acknowledgment due.

6. One certified photocopy of the Test Identification Parade report shall be furnished by the Magistrate to the Investigating Officer of the case free of cost, immediately, with a specific direction to the latter to use it only for the purpose of investigation and not to make its contents public, until the investigation is completed and final report filed.

7. The other certified photocopy of the Test Identification Parade report shall be kept in a sealed cover in the safe custody of the Magistrate.

Additional Guidelines:

1. Court to elicit all information which the witness wishes to disclose and should ask explanatory questions.(In Shaji v. State of Kerala¹⁷ the Hon'ble Supreme Court has held that the Magistrate, when required to perform the duty of recording a statement under S. 164 (1) Cr.P.C. is under an obligation to elicit all information which the witness wishes to disclose and should ask the witness explanatory questions and obtain all possible information in relation to the said case. )

2. Statement under S. 164(1) Cr.P.C. of a person other than the accused shall be conducted in camera.(The Hon'ble High Court of Kerala in Varghese M.U. v. Central Bureau of Investigation, Cochin¹⁸ has held that proceedings in which statement under S.164(1) CrPC of an accused which does not amount to confession, or of a person other than the accused is recorded shall be conducted in camera and a copy of it shall not be given to anyone other than the Investigating Officer, who may require it for his investigation -- until and unless it is made public by him by making it part of the records of the case without any reservation. The Investigating Officer shall not directly or indirectly disclose its contents or issue its copy if it is against public interest. Indiscriminate disclosure of its contents by the Investigating Officer should be avoided.)

3. Accused is not entitled to a copy of statement of witness recorded under S. 164 Cr.P.C.¹⁹

4. Informant cannot get copies of her statement under S. 164 Cr.P.C. but the can approach the investigating officer to peruse through the statement in the presence of police officers and to take notes regarding the brief summary of the contents, but she cannot make a verbatim transcript of the contents of the statement.²⁰

5. Confessions and statement of the accused under S. 164 (1) Cr.P.C. shall be recorded in open court. (See R. 70 Kerala Criminal Rules of Practice, 1982)

6. Magistrates shall see that statement of witnesses recorded under S. 164 Cr.P.C. and the carbon copy shall be put in separate covers and that the covers containing the statement are sealed in their presence immediately after recording the statement and shall further ensure that the certified copy of the statement of witnesses recorded under S. 164 Cr.P.C. is given only to the person to whom it has been ordered to be issued²¹.

7. The statement of child victims under S. 164 Cr.P.C. are to be recorded in the chamber of the Magistrate concerned²².

8. The procedure for recording of statement under S. 164 Cr.P.C. is applicable to missing persons also²³.²⁴

9. If the witness is a child under the age of 12 years of age, if the child does not understand the nature of oath or affirmation, the provisions of Oaths Act, 1969 will not be applicable to such witnesses and administering oath is not necessary in the case of such witnesses²⁵.

10. Statement under S. 164 Cr.P.C. can be generally used only for corroboration or contradiction but not as substantive evidence, but S.164(5 - A) Cr.P.C. states that if the maker of the statement is temporarily or permanently, mentally or physically disabled, the statement made by such a person shall be considered as substantive evidence by the Trial Court²⁶.

11. A statement recorded under S.164, Cr.P.C. is a public document within the meaning of S.74(iii) of the Evidence Act. The original of the statement, which would form part and parcel of the Court records, is a primary evidence under S.62 of the Evidence Act for proving the fact that the said witness had appeared before the Magistrate on the date found thereon and had given a statement, but, it does not prove the veracity of its contents²⁷.

Summary: Thus, it has to be taken that the words "audio video electronic means" used in S. 161, 167 and 275 Cr.P.C. is used in a different sense than the words "video-graphed" appearing in Second Proviso to S. 164(5A)(b), S. 54A and S.154(1) Second Proviso to Cr.P.C. and " medium of electronic video linkage" appearing in S. 167 (2) (b) and Explanation to S. 167 (2) Cr.P.C. The intention of the legislature, in introduction of these terms in S. 161, 164,275 Cr.P.C. is clearly to alter the process of recording of the evidence/statements by use of technology. Therefore, these words can only mean that the police/court, can either record the statements under these sections by pen on paper or entirely by audio video electronic means, without recording the same on paper. Furhter, the only interpretation of the proviso to S. 164(1) Cr.P.C can be as " if the accused is known, has appointed a counsel and is available for informing the right, and on being so informed, has opted to choose to exercise such right, provided in the circumstances of the case, the magistrate chooses to record the evidence in accordance with S. 275 Cr.P.C. with audio video electronic means and not otherwise". While recording the statements under S. 164 Cr.P.C. the guidelines of the Hon’ble Supreme Court and various High Courts have to be kept in mind.

1Provided further that if the person identifying the person arrested is mentally or physically disabled, the identification process shall be video-graphed."

2(b) the recording of such information shall be video-graphed;

3(b) no Magistrate shall authorise detention of the accused in custody of the police under this Section unless the accused is produced before him in person for the first time and subsequently every time till the accused remains in the custody of the police, but the Magistrate may extend further detention in judicial custody on production of the accused either in person or through the medium of electronic video linkage;

4Explanation II.- If any question arises whether an accused person was produced before the Magistrate as required under clause (b), the production of the accused person may be proved by his signature on the order authorising detention or by the order certified by the Magistrate as to production of the accused person through the medium of electronic video linkage, as the case may be."

5https://indiankanoon.org/doc/28747520/

6https://indiankanoon.org/doc/159073234/

7Report of the Committee on Reforms of Criminal Justice System, Government of India, Ministry of Home Affairs, March 2003) Vol I, at p. no. 276.

82018 KHC 6405: AIR 2018 SC 2493: 2018(7) SCC 1

92017 KHC 5630: 2017 Cri.L.J. 5011: 2017(4) KLJ NOC 9

10"Provided that the provisions contained in the first proviso to sub-section (1) of Section 164 of the Code shall, so far it permits the presence of the advocate of the accused shall not apply in this case."

112017 KHC 6819: 2018 (1) KLT 629: 2018 (13) SCC 741

122014 KHC 4321: 2014(2) KLT 767: 2014(8) SCC 913

132015(3) KHC 417: 2015(3) KLJ 4: 2015 (3) KLT 54: ILR 2015(3) Ker. 398

142005 KHC 124 : 2005 (1) SCC 608 : 2005 (1) KLT 748 : AIR 2005 SC 498

15AIR 1961 Mad. 92

162009 KHC 5545 : 2009 CriLJ 2075

17AIR 2013 SC 651

18Supra n.

19See Shakkeer v. State of Kerala (2014(3) KHC 759: 2014(4) KLT 650), where in the Hon'ble High Court of Kerala has held that the accused is not entitled to get a certified copy of the statement of a witness recorded under S. 164 Cr.P.C. as of right, till final report is filed.

20See Athulya v. State of Kerala (2019 (5) KHC 920: ILR 2020 (1) Ker. 129)wherein the Hon'ble High Court of Kerala has held that the victim may have to know the precise details of the contents of the statement so that her rights and interest for effectuating the prosecution of the case are duly protected. Accordingly, it is ordered that the petitioner along with her Advocate may approach the investigating officer concerned after prior intimation and make a request to give her an opportunity to peruse through the said statement and to make some brief notes regarding its contents. Thereupon the investigating officer will permit the petitioner / and her Advocate, if any to peruse through the said statement in the presence of Police officials and the petitioner may be permitted to make notes regarding the brief summary of the contents of the said statement. However, it is made clear that the investigating officer need not give any copy of the said statement to the petitioner and she cannot make a verbatim transcript of the contents of the said statement in the above process and she may only make a brief summary regarding the contents of the said statement after proper perusal and the petitioner shall not disclose the contents to any third parties.)

21See High Court OM No. D3-76266/2016 dated 18.11.2016.

22See High Court OM no. D2-54663/2014 dated 05.11.2015.

23See Valsala Devi and another v. State Police Chief, TVM and others (2016(5) KHC 801: 2016(4) KLJ 738: 2016(4) KLT 864: ILR 2017(1) Ker. 373) wherein it was held that "The above observation of the Supreme Court in Jogendra Nahak's case is  squarely applicable when a person claiming to be the missing person in respect  of whom a case has been registered under S.57 of the Kerala Police Act  appears before him in the course of the enquiry conducted by the police. The Magistrate should be concious of the risks involved in recording  statement of such a person. There is no means for him to ascertain the identity  of the person or the genuineness of the documents that may be produced by her  / him. The probability of impersonation or of the person who allegedly kept her  in illegal detention threatening her / him into giving a statement favourable to  him and thereafter producing her / him before the Magistrate cannot be ruled  out. When such a person appears before the Magistrate, he shall immediately  give notice to the Investigating Officer, who shall without delay ascertain her /  his identity and the circumstances under which she / he happened to appear  before the Court. He shall ask the missing person about the circumstances in  which she / he happened to leave the place from which she / he was reportedly  missing, the persons with whom she / he came into contact, the places she / he  visited or at which she / he stayed and the transactions in which she / he was  involved till she / he appeared before him. It is the duty of the Magistrate to  bring out the facts which are necessary to know whether she / he was abused  by anyone or whether any offence was committed in respect of her / him. If she / he is a minor or person under  other disability, the Magistrate shall get her / him examined by a medical officer  with the consent of her / his guardian.

24See also Varghese M.U. v. Central Bureau of Investigation, Cochin(Supra) wherein the Hon'ble High Court has noted that "Often police produce persons, especially women, who have been abducted,  kidnapped or wrongfully confined, or suspected to have been abducted,  kidnapped or wrongfully confined at the residence of Magistrates after they are  taken into protective custody. The Magistrate immediately records the victim's  statement at his residence as it is made not in the course of an enquiry or trial." approving the practice of recording the statement of missing persons at residence of the Magistrate). However also see Rule 5 (2) of Kerala Criminal Rules of Practice, 1982 which states that "No case shall be heard and no judicial act shall be formally announced or done on a holiday save in case of absolute urgency." read with Rule 5(3) of the said Rules which state that " (3)Nothing in sub-rule (2) shall affect the jurisdiction of a Magistrate to authorise detention of an accused person under sub-section (2) of Section 167 of the Code or to deal with a lunatic in accordance with the provisions of the Indian Lunacy Act, 1912 (Act 4 of 1912) or to record a dying declaration when required to do so by a competent authority or to release an accused from custody."  and the Mandate in s. 164 Cr.P.C. that the statement shall be recorded in the manner of recording evidence, which can only be done in the open court under S. 274,275 and 276 Cr.P.C.

25See Ali K.B. v. State of Kerala (2019 (1) KHC 898:2019 (2) KLJ 124: ILR 2019 (3) Ker. 91)

26See Murgaswamy v. State and another (Supra)

27See Murugaswamy v. State and another (Supra), Kunju Muhammed and others v. State of Kerala (2014 KHC 3116: 2014(2) KLJ 860) and State of Madras v. Krishnan (AIR 1961 Mad. 92)

COVID 19 Challenge to Legal Profession and Legal Education #legalprofession #lawpractice #businesslaw #lawyering #covid19

According to Business Insider, a third of the global population is in corona virus lock-down. Countries around the world are implementing measures to slow down the spread of corona virus, from national quarantines to school closures. Courts, throughout the world, faced with an unprecedented lockdown in history, are working in a limited manner, perhaps for the first time in history, to meet its objectives. Law schools world over are closed down and lawyers are working within their limitations to uphold the dignity of law. 

Considering the spread of the pandemic, no one knows outer time limit of restrictions, or whether there will be a second or third wave of viruses and lock-downs. It is generally understood that significant changes may happen to the society, economy and governance, which may stay for sometime and change the landscape of governance, economy and social interactions. 

The world is going to see huge reliance on technology, especially in the area of remote governance and healthcare in the post COVID-19 scene. There is already a change in the mindset of the governments, media and public regarding adaptation of technology. These changes will also reflect in the legal and Judicial landscape.

In bullet points it is presumed that the following changes may occur in the legal landscape in the post covid-19 world:

1. Less Funds and Inflow: The expected plunge in the global economy will have its toll in the legal industry also. 
2. Use of Technology: Reliance on technology, especially remote working and connecting technology is going to increase in the judicial and legal world. There will be implementation of more effective case management, integrated video conferencing and document collaboration, sharing and judicial data storing technologies through out the judicial structures.
3. Globalisation: On a positive note, COVID 19 may usher in the positive sides of globalisation to the legal industry in an unprecedented manner. If the courts and arbitrators are connecting to the parties and counsels using video conferencing, why can't party with deeper purse bring in an accredited lawyer from another part of the country or world to appear for him?
4. Courts will be more open: Judicial structures may see a readjustment, and the concept of courts in fixed locations may see a change. Courts will be where the judges sit, and court rooms will restrict physical presence of public. Live streaming, video recording etc. of judicial proceedings may become the order of the day, which will make the courts more open than at present.
5. Less Arbitrariness and Discretion in Judicial Decision Making Process: Increased reliance on audio video recording of judicial proceedings, will reduce the third party interpretation of view of the witnesses. Investigating officer and the judge will lose the freedom to determine what portion of the deposition of a witness has to be taken down in writing and what to be omitted while taking down when entire deposition will be audio and video recorded as spoken by the witness. This will give the appellate courts also the capability of assessing the exact demeanor and tenor of the deposition of a witness rather than relying on the verbal record made by the trial court judge or investigating officer. This will usher in more fairness into the system and better witness, and court management. The quality of the judicial decisions including the Appellate orders will improve and the Judicial system will become fair and transparent. It will increase the reliability and credibility of judicial systems.
6. Reduction of Cost of Litigation: implementation of remote access to courts through video conferencing and online filing will reduce actual and hidden costs of litigation. Lawyers, litigants and witnesses can save commutation costs to courts and access their litigation details and proceedings at their comfort zones. Cost of papers, and other incidental expenses for ensuring the physical presence of lawyers, litigants and witnesses in the court room will also so be reduced. Cost making copies, of storing stacks of papers in lawyer's offices and courts and of managing the litigation will also be reduced.
7. Better Time Management: Courts and lawyers and even litigants will be able to manage time spend for the litigation in a better manner with the use of technology in case management software's.
8. Safe Litigation: Vulnerable Witnesses appearing from their safe zones through use of video conferencing technology will increase the confidence of parties in the litigation process.
9. Online Arbitration: Even the arbitration landscape will see consequent changes and will usher in technology based solutions for remote arbitration. 
10. Sleek Lawyering: Use of technology will reduce the cost of setting up a huge office by lawyers near courts. Physical location of the lawyer will become irrelevant and the competency levels of lawyers will be recognised irrespective of their physical location. Currently law practice has a lot to do with the ability of the lawyer to relocate physically. This is bound to change and a competent lawyer can represent before any court or tribunal using remote access technology. Capital expenditure on technology may increase marginally but there will be reduced expenses in several areas including travel to legal professionals.
11. Better Analysis of Effectiveness:  Increased reliance on case management and remote access software's, and recording and live streaming of court proceedings, may help better statistical analyses of judicial proceedings which will ultimately increase efficiency and effectiveness.
12. Legal Tech Business: increased reliance on technology by various stakeholders in legal industry will also see the rise of specialised legal tech businesses including document management business. 
13. Impact on Legal Education: These and several other changes that happen in the legal landscape will also affect the Legal education scenario. Many Law schools have already moved to include technology classes in their curriculum. COVID-19 has also made Law schools to think about remote classes. Availability of lectures in online mode will give flexibility to the students to choose the better ones. This will increase efficacy of law teachers. Universities may also move towards online law examination systems, which is at the same time more foolproof, challenging and transparent.