Section 161 of the Code of Criminal Procedure, 1973 (CrPC), which governed the examination of witnesses by police during investigation, has been replaced by Section 180 of the Bharatiya Nagarik Suraksha Sanhita, 2023 (BNSS). While the core principles — the duty to answer truthfully and the right against self-incrimination — remain unchanged, the new provision introduces audio-video recording of statements where feasible and mandates recording by a woman officer in cases involving sexual offences.
What changed
| Feature | Section 161 CrPC (Old) | Section 180 BNSS (New) |
|---|---|---|
| Duty to answer | Every person bound to answer truly all questions (except self-incriminating) | Same — retained without change |
| Right against self-incrimination | No person obliged to answer questions whose answers tend to incriminate | Same — retained without change |
| Recording method | Written record only | Audio-video recording permitted where feasible |
| Woman officer requirement | No specific requirement | Mandatory recording by woman officer in sexual offence cases |
| Evidentiary status | No substantive evidentiary value; usable only for contradiction under Section 145 of the Indian Evidence Act | Same — usable only for contradiction under Section 148 of the Bharatiya Sakshya Adhiniyam |
| Police officer's authority | Any investigating officer | Same authority, with enhanced procedural obligations |
Full statutory text
Section 161 CrPC (Old Law):
(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.
Section 180 BNSS (New Law):
(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 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 64, section 65, section 66, section 67, section 68, section 69, section 70, section 71, section 74, section 75, section 76, section 77, section 78, section 79 or section 124 of the Bharatiya Nyaya Sanhita, 2023 is alleged to have been committed or attempted, shall be recorded, by a woman police officer or any woman officer.
Key differences
Audio-video recording: Section 180(3) BNSS introduces the option to record witness statements through "audio-video electronic means" in addition to written recording. While this is permissive ("may also be recorded"), it signals a legislative push towards digital evidence collection.
Woman officer mandate: The proviso to Section 180(3) mandates that in offences against women, the victim's statement must be recorded by a woman police officer or any woman officer. This is a new safeguard ensuring gender-sensitive investigation practices.
Constitutional core preserved: The fundamental protections — the right against self-incrimination under sub-section (2) and the requirement for separate and true records under sub-section (3) — remain identical to Section 161 CrPC.
Evidentiary limitations unchanged: Statements recorded under Section 180 BNSS carry no substantive evidentiary value, consistent with the position under CrPC. They remain usable only to contradict the witness during cross-examination under Section 148 of the Bharatiya Sakshya Adhiniyam (BSA), 2023.
What this means for practitioners
For defence counsel: Audio-video recordings of Section 180 statements, where available, provide a new tool for impeaching witnesses whose trial testimony contradicts their investigation statements. The recording eliminates disputes about what was actually stated to the police officer.
For prosecution: The woman officer mandate in sexual offence cases is a procedural requirement. Non-compliance may be challenged by the defence as a violation of BNSS procedure, potentially affecting the weight of the statement for contradiction purposes.
For investigating officers: While audio-video recording remains permissive, officers should adopt it as standard practice where infrastructure permits. Digital recordings create better evidentiary records and reduce later disputes about the content of statements.
For pending cases: Under Section 531(2)(a) BNSS, investigations pending before 1 July 2024 continue under Section 161 CrPC. Statements recorded on or after 1 July 2024 must comply with Section 180 BNSS requirements, including the woman officer mandate for offences against women.
Does old case law still apply?
Tahsildar Singh v. State of U.P. (AIR 1959 SC 1012): The landmark ruling that statements under Section 161 CrPC are not substantive evidence and can only be used for contradiction under Section 145 of the Evidence Act remains fully applicable to Section 180 BNSS statements, with the corresponding reference now being Section 148 BSA.
State of Kerala v. Babu (1999) 2 SCC 22: The principle that omissions in a Section 161 statement amount to contradictions and can be proved under Section 145 of the Evidence Act continues to apply.
Mukesh v. State (NCT of Delhi) (2017) 6 SCC 1 (Nirbhaya case): The emphasis on gender-sensitive investigation procedures, including recording of victim statements by trained officers, is now given statutory backing by the proviso to Section 180(3) BNSS.
All existing jurisprudence on the evidentiary limitations of police statements, the right against self-incrimination, and the procedure for recording and using such statements continues to apply to Section 180 BNSS without modification.
Frequently asked questions
Are Section 180 BNSS statements admissible as evidence in trial? No. Like Section 161 CrPC statements, Section 180 BNSS statements have no substantive evidentiary value. They can only be used to contradict the witness during cross-examination under Section 148 of the Bharatiya Sakshya Adhiniyam, 2023.
Is audio-video recording of statements mandatory under BNSS? No. Section 180(3) uses permissive language — statements "may also be recorded" by audio-video electronic means. However, in practice, courts may draw adverse inferences if recording facilities were available but not used.
What happens if a woman officer is not available to record the victim's statement in a sexual offence case? The provision mandates recording by "a woman police officer or any woman officer." If no woman officer is available at the police station, the investigation team must make efforts to arrange one. Non-compliance may be raised as a procedural irregularity.