Section 162 CrPC vs Section 181 BNSS — Statements to Police and Their Use at Trial

In India, Section 181 of the Bharatiya Nagarik Suraksha Sanhita, 2023 (BNSS) replaced Section 162 of the Code of Criminal Procedure, 1973 (CrPC) on 1 July 2024. The rule is unchanged: a statement to the police is not signed and, at the trial of the offence under investigation, may be used only to contradict the witness. Contradiction now follows Section 148 of the Bharatiya Sakshya Adhiniyam, 2023 (BSA).

How the police examine a witness and record the statement (Section 161 CrPC / Section 180 BNSS) is covered on the Section 161 page; this page covers how the statement may be used.

At a glance

What changed

Section 181 BNSS (from Section 162 CrPC)

• Heading — Minor edit. "Statements to police not to be signed: Use of statements in evidence" becomes "Statements to police and use thereof".
• Sub-section (1), no signature and bar on use — Identical. A statement to a police officer "in the course of an investigation under this Chapter" shall not, if reduced to writing, be signed by the maker, nor be "used for any purpose, save as hereinafter provided, at any inquiry or trial in respect of any offence under investigation at the time when such statement was made".
• Proviso to sub-section (1), contradiction — Minor edit. Same words, but contradiction is "in the manner provided by section 148 of the Bharatiya Sakshya Adhiniyam, 2023" instead of "section 145 of the Indian Evidence Act, 1872 (1 of 1872)". Section 148 BSA repeats Section 145 IEA word for word.
• Sub-section (2), carve-outs — Minor edit. "clause (1) of section 32 of the Indian Evidence Act, 1872" becomes "clause (a) of section 26 of the Bharatiya Sakshya Adhiniyam, 2023"; "section 27 of that Act" becomes "the proviso to sub-section (2) of section 23 of that Adhiniyam". The discovery rule itself changes by one word: Section 27 IEA said "relates distinctly to the fact thereby discovered"; the BSA proviso says "relates distinctly to the fact discovered".
• Explanation, omissions — Identical. An omission "may amount to contradiction if the same appears to be significant and otherwise relevant", and whether it does "shall be a question of fact".

Section 180 BNSS (from Section 161 CrPC) — in brief

• Sub-sections (1)-(3) and the audio-video proviso — Minor edit (Section 180(3) now ends in a colon before the provisos).
• Second proviso, woman officer — Modified. The IPC list (354, 354A-354D, 376 to 376E, 509) becomes BNS sections 64 to 71, 74 to 79 and 124, and now includes BNS section 69 (sexual intercourse by employing deceitful means, etc.) and section 124 (voluntarily causing grievous hurt by acid); neither IPC 326A nor any counterpart of section 69 was in the CrPC list.

Linked provisions

• Case diary — Minor edit. Section 172(1A) CrPC (statements under Section 161 "shall be inserted in the case diary") is now Section 192(2) BNSS, referring to Section 180.
• Copies to the accused — Modified. Section 230 BNSS sets a limit of "fourteen days from the date of production or appearance of the accused" for furnishing the Section 180(3) statements, and extends copies to the victim if represented by an advocate. See Section 207 CrPC vs Section 230 BNSS.

Statutory text (relevant extract)

Extract, Section 181 BNSS:

(1) No statement made by any person to a police officer in the course of an investigation under this Chapter, shall, if reduced to writing, be signed by the person making it; nor shall any such statement or any record thereof, whether in a police diary or otherwise, or any part of such statement or record, be used for any purpose, save as hereinafter provided, at any inquiry or trial in respect of any offence under investigation at the time when such statement was made:

Provided that when any witness is called for the prosecution in such inquiry or trial whose statement has been reduced into writing as aforesaid, 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; …

(2) Nothing in this section shall be deemed to apply to any statement falling within the provisions of clause (a) of section 26 of the Bharatiya Sakshya Adhiniyam, 2023; or to affect the provisions of the proviso to sub-section (2) of section 23 of that Adhiniyam.

Extract, Section 162(2) CrPC (repealed from 1 July 2024):

(2) Nothing in this section shall be deemed to apply to any statement falling within the provisions of clause (1) of section 32 of the Indian Evidence Act, 1872 (1 of 1872); or to affect the provisions of section 27 of that Act.

Extract, Section 148 BSA:

… if it is intended to contradict him by the writing, his attention must, before the writing can be proved, be called to those parts of it which are to be used for the purpose of contradicting him.

How it works — the steps

1. Recording and no signature (Sections 180(3), 181(1)). The officer "may" write the statement down, keeping a separate and true record for each person; the maker does not sign it.
2. Case diary (Section 192). The statement is inserted in the case diary (Section 192(2)). A criminal court may use the diary "not as evidence in the case, but to aid it" (Section 192(4)); the accused cannot call for it unless the officer uses it to refresh memory or the Court uses it to contradict him, when Sections 148 or 164 BSA apply (Section 192(5)).
3. Police report (Section 193(6)(b), (7)). The statements of every proposed prosecution witness are forwarded with the report; the officer may ask, with reasons, that a part be excluded from the accused's copies.
4. Copy to the accused (Section 230(iii)). In no case beyond fourteen days from the date of production or appearance of the accused, subject to the Magistrate's decision on any exclusion.
5. The bar at trial (Section 181(1)). At the inquiry or trial of the offence under investigation, the statement cannot be used for any purpose except as the proviso allows.
6. Contradiction (proviso, with Section 148 BSA). When the maker testifies for the prosecution, the accused may use any duly proved part to contradict him; the prosecution needs the Court's permission. The witness's attention must first be called to the parts to be used. In re-examination, any part may then be used "for the purpose only of explaining any matter referred to in his cross-examination".
7. Omissions (Explanation). A significant and relevant omission may amount to a contradiction; whether it does is a question of fact.
8. Carve-outs (Section 181(2)). The bar does not reach a statement as to the cause of the maker's death (Section 26(a) BSA) or affect proof of information leading to discovery of a fact (proviso to Section 23(2) BSA).

What this means in practice

For the defence advocate

• Obtain the Section 180(3) statements under Section 230(iii); if a part was withheld under Section 193(7), the first proviso to Section 230 lets the Magistrate direct that it be furnished.
• To contradict, put the marked passage to the witness; if he denies it, prove it through the investigating officer. Under V. K. Mishra, a statement put to neither cannot be looked into for any purpose.
• An omission is not automatically a contradiction; show why the omitted fact is significant in context.

For the public prosecutor

• Using the police statement against a prosecution witness who departs from it needs the Court's permission under the proviso to Section 181(1).

For the investigating officer

• Record each witness separately (Section 180(3)), do not ask for a signature, and use a reasoned note under Section 193(7) if a part should be withheld — the Magistrate decides.

In other proceedings

• The bar in Section 181(1) is tied to the inquiry or trial of the offence under investigation. As Khatri held of the identical Section 162, it does not reach a civil suit or a writ petition, where relevance under the evidence law decides admissibility.

Judgments that still matter

Tahsildar Singh v. State of Uttar Pradesh, [1959] Supp. 2 S.C.R. 875 — 5 May 1959. A six-Judge Bench decided the appeal; the majority judgment was delivered by K. Subba Rao J. Construing Section 162 of the Code of Criminal Procedure, 1898, the majority stated that a statement in writing made to the police "can be used only to contradict his statement in the witness-box and for no other purpose", and that statements "not reduced to writing by the police officer cannot be used for contradiction". The report shows no paragraph numbers. The 1898 text is not among our sources, and Section 181 BNSS carries an Explanation on omissions, so the majority's treatment of omissions is not restated here; see the Section 161 page.

Khatri v. State of Bihar, [1981] 3 S.C.R. 145 (1981 INSC 61) — 10 March 1981. In writ petitions under Article 32 by undertrials who alleged they were blinded in police custody, the State resisted production of CID investigation reports under Sections 162 and 172 CrPC. The order of P.N. Bhagwati and Baharul Islam JJ., delivered by Bhagwati J., held that the Section 162 bar applies only where a statement is sought to be used "at any inquiry or trial in respect of any offence under investigation at the time when such statement was made". It called the bar "a limited bar" with no application in a civil proceeding or a proceeding under Article 32 or 226, and held that such exceptions to the reception of relevant evidence "must be strictly interpreted and not expansively construed". The report shows no paragraph numbers; the holdings are at report pages 152-153 (Section 162) and 156-158 (Section 172, which it held likewise did not bar production). Sections 181(1) and 192 BNSS repeat the words construed.

V. K. Mishra v. State of Uttarakhand, [2015] 8 S.C.R. 1 (2015 INSC 525) — 28 July 2015. A three-Judge Bench (T.S. Thakur, R.K. Agrawal and R. Banumathi JJ.; judgment by Banumathi J.) in a dowry-death appeal held that Section 161 statements "are not substantive pieces of evidence" and may be used for contradiction by the accused under Section 145 IEA, by the prosecution with leave of the Court, and in re-examination (para 15). The words "if duly proved" mean the statement "cannot be admitted in evidence straightway nor can be looked into" until proved through the witness and the investigating officer (para 16). Because neither the witness (PW-1) nor the investigating officer was confronted, PW-1's police statement could not be used to discredit him (para 19). The Court upheld the convictions under Section 304B IPC and reduced the life sentences to ten years for one appellant and seven years each for two others, partly allowing the appeals (para 42). Section 181(1) BNSS and Section 148 BSA repeat the words construed.

On a reading of the text, since Section 181 changes only cross-references and Section 148 BSA repeats Section 145 IEA, these judgments remain relevant. No judgment construing Section 181 BNSS itself was read for this page.

Which law applies to your case

Section 531(2)(a) BNSS provides that an investigation pending immediately before 1 July 2024 is continued under the CrPC "as if this Sanhita had not come into force". On a reading of that clause, statements recorded in such an investigation are governed by Sections 161 and 162 CrPC, and investigations begun on or after 1 July 2024 by Sections 180 and 181 BNSS. Section 170(2) BSA makes a similar saving for proceedings pending under the Evidence Act. See which law applies to an offence before 1 July 2024.

Frequently asked questions

What is the BNSS equivalent of Section 162 CrPC? Section 181 of the Bharatiya Nagarik Suraksha Sanhita, 2023 replaces Section 162 CrPC from 1 July 2024. The words are the same except for the cross-references, which now point to the Bharatiya Sakshya Adhiniyam, 2023: Section 148 BSA for contradiction, Section 26(a) BSA for dying declarations and the proviso to Section 23(2) BSA for discovery.

Do I have to sign my statement to the police under the BNSS? No. Section 181(1) BNSS says a statement made to a police officer in the course of an investigation shall not, if reduced to writing, be signed by the person making it. Section 162(1) CrPC used the same words. If the officer writes statements down, Section 180(3) requires a separate and true record of each person's statement.

Can a police statement be used as evidence at the trial? Not as substantive evidence. Under the proviso to Section 181(1) BNSS, 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 BSA. In V. K. Mishra v. State of Uttarakhand ([2015] 8 S.C.R. 1) the Supreme Court held that such statements are not substantive pieces of evidence and cannot be looked into unless duly proved.

How is a witness contradicted with his police statement? Section 148 BSA, like Section 145 of the Evidence Act, requires that the witness's attention be called to the parts of the writing to be used before it can be proved. In V. K. Mishra (paras 18-19) the Supreme Court described the steps: the marked part is put to the witness in cross-examination, and if he denies it, it is proved through the investigating officer. Where neither was confronted, the statement could not be looked into for any purpose.

Can an omission from a police statement be used to contradict a witness? Yes, in some cases. The Explanation to Section 181 BNSS, identical to the Explanation to Section 162 CrPC, says an omission to state a fact may amount to contradiction if it appears significant and otherwise relevant in its context. Whether a particular omission amounts to a contradiction is a question of fact.

Does Section 181 BNSS bar use of police statements in a civil case or a writ petition? Section 181(1) bars use only at an inquiry or trial in respect of an offence under investigation when the statement was made. In Khatri v. State of Bihar ([1981] 3 S.C.R. 145) the Supreme Court held that the identical bar in Section 162 CrPC is a limited bar that does not apply in a civil proceeding or a proceeding under Article 32 or 226, where the statement may be used if otherwise relevant under the Evidence Act.

Are dying declarations and discovery statements made to the police affected by Section 181? No. Section 181(2) BNSS says the section does not apply to a statement falling within Section 26(a) BSA, which covers a statement by a person as to the cause of his death, and does not affect the proviso to Section 23(2) BSA, which lets so much of an accused's information as relates distinctly to a fact discovered be proved. Section 162(2) CrPC made the same carve-outs by reference to Sections 32(1) and 27 of the Evidence Act.

Which law applies to police statements recorded before 1 July 2024? Section 531(2)(a) BNSS says an investigation pending immediately before 1 July 2024 continues under the CrPC as if the BNSS had not come into force. On a reading of that clause, statements recorded in such an investigation are governed by Sections 161 and 162 CrPC, while investigations begun on or after that date run under Sections 180 and 181 BNSS.

Related

• Section 161 CrPC vs Section 180 BNSS — Examination of Witnesses by Police
• Section 160 CrPC vs Section 179 BNSS — Attendance of Witnesses
• Section 207 CrPC vs Section 230 BNSS — Supply of Documents
• Hostile witness, previous statements and impeaching credit — IEA 145 vs BSA 148
• Dying declarations — IEA 32 vs BSA 26
• Discovery statements — IEA 27 vs BSA 23(2) proviso
• CrPC to BNSS master table
• Sections 206–209 CrPC vs Sections 229–232 BNSS — Special Summons in Petty Offences and Commitment to the Court of Session

Sources

• Bharatiya Nagarik Suraksha Sanhita, 2023 (Gazette text): Sections 180, 181, 192, 193, 230 and 531.
• Code of Criminal Procedure, 1973 (India Code text): Sections 161, 162, 172 and 173.
• Bharatiya Sakshya Adhiniyam, 2023 (Gazette text): Sections 23, 26, 148 and 170.
• Indian Evidence Act, 1872 (India Code text): Sections 27, 32 and 145.
• Bharatiya Nyaya Sanhita, 2023 (Gazette text): Sections 64 to 79 and 124 (headings, for the Section 180 list).
• Judgments read in full text: Tahsildar Singh v. State of Uttar Pradesh (S_1959_2_875_923_EN.md); Khatri v. State of Bihar (1981_3_145_164_EN.md); V. K. Mishra v. State of Uttarakhand (2015_8_1_31_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.