Section 161 CrPC vs Section 180 BNSS: Police Examination of Witnesses Compared

In India, Section 180 of the Bharatiya Nagarik Suraksha Sanhita, 2023 (BNSS) re-enacts Section 161 of the Code of Criminal Procedure, 1973 (CrPC) on police examination of witnesses from 1 July 2024. The text and both provisos carry over; the only change is the offence list for woman-officer recording, which now includes BNS section 69 (sexual intercourse by employing deceitful means, etc.) and section 124 (acid attack).

At a glance

	Old law	New law
Section	Section 161, CrPC 1973	Section 180, BNSS 2023 (in force from 1 July 2024, S.O. 848(E))
What it does	Power of the investigating officer to examine orally any person supposed to know the facts, and to record the statement	Same power, same words
Punishment	None: procedural section	None: procedural section
Cognizable / bailable / triable by	Not applicable (procedural; no First Schedule entry)	Not applicable (procedural; no First Schedule entry)
Change type	—	Modified (offence list in the second proviso only)

What changed

Sub-section (1), who may examine — Identical. "Any police officer making an investigation under this Chapter", or an officer of the rank the State prescribes acting on his requisition, "may examine orally any person supposed to be acquainted with the facts and circumstances of the case".
Sub-section (2), duty to answer — Identical. The person "shall be bound to answer truly all questions", except those whose answers "would have a tendency to expose him to a criminal charge or to a penalty or forfeiture".
Sub-section (3), written record — Minor edit. Same words; the sentence now ends with a colon, leading into the provisos.
First proviso, audio-video recording — Identical. "statement made under this sub-section may also be recorded by audio-video electronic means". This was inserted into s.161(3) CrPC by Act 5 of 2009, s.12 (w.e.f. 31-12-2009).
Second proviso, woman officer — Modified. The rule is unchanged: the statement "shall be recorded, by a woman police officer or any woman officer". It dates from Act 13 of 2013, s.15 (w.e.f. 3-2-2013). The list changes from IPC ss.354, 354A–354D, 376, 376A, 376AB, 376B–376D, 376DA, 376DB, 376E and 509 to BNS ss.64–71, 74–79 and 124. BNS s.124 (acid) has no counterpart in the CrPC list, which did not include IPC ss.326A or 326B; nor does BNS s.69 (sexual intercourse by employing deceitful means, etc.).
Use of the statement, s.162 CrPC to s.181 BNSS — Modified (linked). The rule is the same, but the cross-references change. Contradiction is now "in the manner provided by section 148 of the Bharatiya Sakshya Adhiniyam, 2023" (was s.145, Indian Evidence Act, 1872). The carve-outs now refer to s.26(a) and the proviso to s.23(2) BSA (were s.32(1) and s.27 of the Evidence Act). The Explanation on omissions is identical.
Attendance of witnesses, s.160 CrPC to s.179 BNSS — Modified (linked). The upper age in the proviso falls from sixty-five to sixty, "a person with acute illness" is added, and a new second proviso lets a person attend the police station if willing.

Statutory text (relevant extract)

Section 161(2)–(3) CrPC, with provisos — extract:

(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 354, … section 376E or section 509 of the Indian Penal Code (45 of 1860) is alleged to have been committed or attempted shall be recorded, by a woman police officer or any woman officer.

Section 180(3) BNSS, second proviso — extract:

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.

Section 181(1) BNSS, proviso — extract:

… 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 148 of the Bharatiya Sakshya Adhiniyam, 2023; …

How it works — the steps

Securing attendance (s.179). The investigating officer may, by written order, require a person within his own or an adjoining station's limits to attend. A male under fifteen or above sixty, a woman, a mentally or physically disabled person, or a person with acute illness cannot be required to attend anywhere but their residence. They may attend the station if willing.
Oral examination (s.180(1)). The investigating officer, or an officer of the prescribed rank acting on his requisition, questions "any person supposed to be acquainted with the facts". In Nandini Satpathy the Supreme Court held that this includes a person the police suppose to be the accused.
Duty to answer, with a limit (s.180(2)). The person must answer truly, except where the answer would tend to expose him to a criminal charge, penalty or forfeiture. Article 20(3) of the Constitution separately provides that "No person accused of any offence shall be compelled to be a witness against himself."
Recording (s.180(3)). Writing the statement down is optional ("may"). If the officer does, he must keep a separate and true record for each person. Audio-video recording is also optional (first proviso).
Woman victim (second proviso). Where a woman against whom a listed BNS offence is alleged is examined, a woman police officer or any woman officer records the statement.
No signature, limited use (s.181). The statement is not signed. At the trial of the offence under investigation it may be used only to contradict the witness under s.148 BSA, and then in re-examination to explain matters raised in cross-examination. Under the Explanation, an omission may amount to a contradiction if it is significant and otherwise relevant, which "shall be a question of fact".
Disclosure (s.230(iii)). In a case on a police report, the accused gets free copies of the s.180(3) statements of the prosecution's proposed witnesses within fourteen days of production or appearance. The victim gets them too if represented by an advocate. Parts the police ask to exclude are subject to the Magistrate's decision.

What this means in practice

For a witness: You must answer truthfully, but you are not bound to give an answer that would tend to expose you to a criminal charge (s.180(2)). You are not asked to sign what is written (s.181(1)). If you fall within the s.179 proviso, you can insist on being examined where you live.
For a person the police suspect: Being called "a witness" does not remove the protection. Nandini Satpathy held that s.161 covers a suspected accused and that Article 20(3) applies at the police-questioning stage. If you are arrested and interrogated, s.38 BNSS (formerly s.41D CrPC) entitles you to meet an advocate of your choice during interrogation, "though not throughout interrogation".
For the investigating officer: Record each person's statement separately and accurately. Use a woman officer for a woman victim of a listed offence, now including BNS ss.69 and 124. On a reading of the text, audio-video recording remains a choice, but it gives an independent record of what was said.
For the defence advocate: Seek the s.180(3) statements under s.230(iii), within the fourteen-day window. At trial, contradict the witness by first drawing attention to the parts of the writing to be used, as s.148 BSA requires. Unrecorded statements cannot be used for contradiction (Tahsildar Singh).
For the prosecutor: Using the statement to contradict your own witness needs the Court's permission (s.181(1) proviso).

Judgments that still matter

Tahsildar Singh v. State of Uttar Pradesh, [1959] Supp. 2 S.C.R. 875 (5 May 1959). A Bench of six Judges decided the case. The judgment of four of them (B.P. Sinha, J.L. Kapur, A.K. Sarkar and K. Subba Rao JJ.) was delivered by Subba Rao J., and a separate judgment by M. Hidayatullah J. spoke for Jafer Imam J. and himself. The majority set out propositions on police statements under s.162 of the 1898 Code. A written statement "can be used only to contradict his statement in the witness-box and for no other purpose". Statements "not reduced to writing by the police officer cannot be used for contradiction". A statement not expressly recorded can be used for contradiction only where it is deemed to form part of the recorded statement, "not because it is an omission strictly so-called", and that fiction is permissible in three cases only: where a recital is necessarily implied, where it is the negative aspect of a positive recital, or where the two statements cannot stand together. Why it matters now: s.181(1) BNSS keeps the same limited use and s.181's proviso applies it through s.148 BSA. Section 162 CrPC 1973 and s.181 BNSS both contain an Explanation that an omission "may amount to contradiction if the same appears to be significant and otherwise relevant". This page does not state how far the three categories survive that Explanation, because the 1898 text was not read.

Nandini Satpathy v. P.L. Dani, [1978] 3 S.C.R. 608 (1978 INSC 80), 7 April 1978. A former Chief Minister, summoned for questioning in a vigilance case, was prosecuted under s.179 IPC for refusing to answer. The Bench (V.R. Krishna Iyer, Jaswant Singh and V.D. Tulzapurkar JJ.; judgment by Krishna Iyer J.) held that "any person supposed to be acquainted with the facts and circumstances of the case" "includes an accused person who fills that role because the police suppose him to have committed the crime". It described s.161(2) as "a sort of parliamentary commentary on Article 20(3)". It held that "section 161 enables the police to examine the accused during investigation", while Article 20(3) protects the person against compelled answers. On the Court's reading, compelled testimony includes answers obtained by "psychic torture, atmospheric pressure", environmental coercion and similar methods, but the legal penalty for refusing is not itself compulsion. On the presence of a lawyer, the Court said that "Over-reaching Art. 20(3) and section 161(2) will be obviated by this requirement". The requirement is that an accused who wishes to have his lawyer present during examination should not be denied that facility, though the police need not secure one. Why it matters now: ss.180(1) and (2) repeat the words the Court construed, so on a reading of the text the construction carries over to s.180.

Which law applies to your case

Section 531(2)(a) BNSS provides that an investigation pending immediately before 1 July 2024 is continued "in accordance with the provisions of the Code of Criminal Procedure, 1973 … as if this Sanhita had not come into force". On a reading of that clause, witnesses examined in such an investigation, even after 1 July 2024, are examined under s.161 CrPC, and their statements are used under s.162 CrPC. Investigations begun on or after that date run under ss.180–181 BNSS. For the substantive offence, see which law applies to an offence before 1 July 2024.

State variation noted in the CrPC text: the CrPC text read for this page prints a Chhattisgarh amendment (Act 25 of 2015) substituting the second proviso to s.161(3), with added offences and recording by audio-video means "as far as possible". Whether any State has amended s.180 BNSS was not checked.

Frequently asked questions

Do I have to answer police questions if I am examined as a witness under Section 180 BNSS? Section 180(2) BNSS says a person examined is bound to answer truly all questions relating to the case, other than questions whose answers would tend to expose him to a criminal charge, a penalty or a forfeiture. The words are the same as Section 161(2) CrPC. In Nandini Satpathy v. P.L. Dani ([1978] 3 S.C.R. 608) the Supreme Court described Section 161(2) as a parliamentary commentary on Article 20(3) of the Constitution, which bars compelling an accused to be a witness against himself.

Do I have to sign the statement the police write down? No. Section 181(1) BNSS says a statement made to a police officer in the course of investigation shall not, if reduced to writing, be signed by the person making it. Section 162(1) CrPC said the same. Section 180(3) requires the officer, if he writes statements down, to make a separate and true record for each person.

Can my statement to the police be used as evidence at the trial? Only in the limited way Section 181(1) BNSS allows. When the maker is called as a prosecution witness, any part of the written statement, if duly proved, may be used by the accused, and with the Court's permission by the prosecution, to contradict the witness in the manner provided by Section 148 of the Bharatiya Sakshya Adhiniyam, 2023. In Tahsildar Singh v. State of Uttar Pradesh (1959) the Supreme Court held that a written police statement can be used only to contradict the witness and that an unrecorded statement cannot be used for contradiction at all.

Is audio-video recording of police statements mandatory under the BNSS? No. The first proviso to Section 180(3) BNSS says a statement "may also be recorded by audio-video electronic means". The same proviso was inserted into Section 161(3) CrPC by Act 5 of 2009 (w.e.f. 31-12-2009), so it is not new. Section 2(1)(a) BNSS defines audio-video electronic means to include use of any communication device for purposes such as video conferencing and recording evidence.

Who must record the statement of a woman who is the victim of a sexual offence? The second proviso to Section 180(3) BNSS says the statement of a woman against whom an offence under BNS sections 64 to 71, 74 to 79 or 124 is alleged to have been committed or attempted shall be recorded by a woman police officer or any woman officer. The same rule has applied under Section 161(3) CrPC since Act 13 of 2013 (w.e.f. 3-2-2013), for the IPC offences it listed. BNS section 124 (voluntarily causing grievous hurt by acid) had no counterpart in the CrPC list.

Can the police require me to come to the police station to be examined? Section 179(1) BNSS lets an investigating officer require, by written order, the attendance of a person within the limits of his own or an adjoining station. Its proviso says that a male under fifteen or above sixty, a woman, a mentally or physically disabled person or a person with acute illness shall not be required to attend anywhere other than where they reside, though they may be permitted to attend the police station if willing. Section 160 CrPC used sixty-five as the upper age and did not mention acute illness.

Does the accused get copies of the witness statements recorded by the police? Yes, for witnesses the prosecution proposes to examine. Section 230(iii) BNSS requires the Magistrate, in a case instituted on a police report, to furnish free copies of statements recorded under Section 180(3) within fourteen days of the accused's production or appearance, subject to any part the police ask to exclude. Section 207 CrPC required this "without delay" and set no day limit.

Sources

Acts and sections read: BNSS 2023 ss.2(1)(a), 38, 179, 180, 181, 230, 531 (Gazette CG-DL-E-25122023-250884); BSA 2023 s.148 (Gazette CG-DL-E-25122023-250882); CrPC 1973 ss.41D, 160, 161, 162, 207 (original India Code text); Constitution of India, Art. 20(3).
Judgments read (Veritect judgment corpus, full text): Tahsildar Singh v. State of Uttar Pradesh (S_1959_2_875_923_EN.md); Nandini Satpathy v. P.L. Dani (1978_3_608_651_EN.md).

This page explains the statutory text and the judgments cited as they stand. It is not legal advice; for a specific case, consult an advocate.

Section 161 CrPC vs Section 180 BNSS — Examination of Witnesses by Police