Four days into the new year, former Jawaharlal Nehru University (JNU) student Umar Khalid moved a city court raising concerns about an alleged 'vicious media campaign' against him. Khalid asked how the media had access to documents which even he as an accused did not have.
The police filed a chargesheet against Khalid on December 26 but he got an electronic copy of the same only on January 5. Meanwhile, several media organisations had already reported how Khalid admitted to his role in inciting the February 2020 violence in Northeast Delhi.
"The media says that in my confessional statements (disclosure statements) I have admitted to my role in the riots, how does that make sense when I gave it in writing that I had not signed any statement while in police custody on 4 October. I am well aware that these confessional statements are not admissible in court, but there is an obvious pattern of selected disclosure statements being leaked…" he is reported to have told the judge.
Apart from Khalid, Delhi riots accused Devangana Kalita, Natasha Narwal and Asif Iqbal Tanha have also complained about alleged leaks from the police in the form of press notes, disclosure statements or alleged confessions to fuel a media trial against them.
BOOM explains what are statements made to the police and whether they can be used during trial.
Statements made to the police
Sections 161 and 162 of the Code of Criminal Procedure (CrPC), 1973 outline rules on how the police may examine a witness. Section 164 outlines the scope of recording a witness statement before a magistrate.
Under Section 161 an investigating officer may question any person who is supposed to be acquainted with the facts and circumstances of the case. According to the procedure, a person is duty-bound to truly answer all questions but may choose not to if answering any such question will get him in trouble or have a tendency to expose him to a criminal charge. This rule is in consonance with Article 20(3) of the Indian Constitution which says that "No person accused of any offence shall be compelled to be a witness against himself."
A police officer may make a written record of these statements made to him, provided the same is also recorded electronically. This statement must be recorded in the first person and it cannot be a gist or interpretation of what the police thinks was said to him.
Statements to the police are not taken under oath and hence cannot be used as evidence. However, Section 162 explains the exception under which they may be used at trial.
According to Section 162, a witness does not have to sign any statement made to the police under section 161. It also clarifies that a statement made under Section 161—also called 161 or case diary statements—may be used by the defence and the prosecution (with the court's permission) to contradict a prosecution witness.
Statement made to a Magistrate
According to Section 164(1) of CrPC, a judicial magistrate or metropolitan magistrate may record any statement even if they do not have jurisdiction over the case.
When a witness or an accused makes a statement confessing to a crime, it is a called a confessional statement. A confession made to the police is not admissible in court, however, a judge may record confessions which can be used at trial.
Can these statements be used as evidence?
It is important to explain Sections 25, 25 and 27 of the Evidence Act, 1872 when one talks about statements made to the police.
In common parlance, the full statement is called the disclosure statement but only that part is admissible which led to the discovery of new facts, evidence, seizure.
According to Section 25 confessions/made to a police officer cannot be used. Section 26 says this confession may be used only when it is made before a magistrate.
Section 27 says that only that specific part of a statement made by an accused in police custody which directly leads to the discovery of new facts or evidence may be retained and submitted as evidence, while the rest must be disregarded.