Pointing out that the list of hostile witnesses has been getting bigger, resulting in acquittals, the Madras High Court highlighted the need to record the examination of witnesses by police by electronic means (audio/video) in all future investigations.
Observing that the legislature had introduced the proviso to Section 161 of Criminal Procedure Code by Act 5 of 2009, whereby the witness examination can be recorded by audio/video electronic means, the bench led by Justice Vaidyanathan said, “We found that this proviso has remained in the book for the last 10 years and not once it has been resorted to.”
Also, citing the proviso added to Section 164 of CrPC, which deals with recording of confessions and statements by either the Metropolitan Magistrates or Judicial Magistrates, the bench said recording the examination would make it easier for the prosecution to confront witnesses when they recant the earlier statement and is treated to be hostile. “It will bring in an element of deterrence and make the witness think twice before he disowns the statement given to the police,” the bench said.
It added that this would also enable the witness to substantiate that the statement shown before the court was not actually given by him but instead fabricated by the police. “Therefore, it will be of use both to the witness as well as to the prosecution, and it will enable the court to properly appreciate the evidence of such witness,” the bench stressed.
Pointing out that special courts dealing with cases under Pocso Act were using electronic means for recording the statements of the girl and others, the bench said it was important to use this regularly so that a witness who disowns an earlier statement can be confronted by showing the recording.
This would help the court to question the credibility of a witnesses under Section 155 of the Indian Evidence Act and take appropriate action for perjury, the bench said, adding that unless an element of deterrence was brought in their minds, witnesses turning hostile would continue, resulting in a large number of acquittals. “It will ultimately end up in complete breakdown of the criminal justice system,” it said.
The bench then sought the assistance of the Bar to appraise it on the manner in which such recording could be effectively implemented in all future investigations across the State.
Posting the plea for further hearing to November 13, the bench also sought the State Public Prosecutor and the Additional Public Prosecutor to take necessary instructions from the police in order to assist the court.
“If required, a higher-level police official shall also be present before this court so that we will be in a position to properly understand the practicality to implement it, by putting certain questions to the officer,” the bench added.