1. Introduction and Background of the Request:

1.1. An extradition request was made by the Government of India(GOI) to the Government of United Kingdom in respect of Mr. Vijay Mallya on 9th February, 2017 and as India is not a designated Category 2 territory under Section 84 (7) of the Extradition Act 2003 (the “2003 Act”), the GOI had to show a prima facie case against Sh. Vijay Mallya pursuant to Section 84 (1) of the 2003 Act. Accordingly, the proceedings took place before the Senior District Judge Arbuthnot (“the SDJ”), sitting at Westminster Magistrates’ Court.

2. Major defence of Sh. Vijay Mallya before the UK Courts

2.1. One of the major defence of Sh. Vijay Mallya before the UK Courts was that the material relied upon against him includes statements under Section 161 Cr.P.C., which are inadmissible in nature. The major ground was that

(i) the UK-India treaty never envisaged statements u/s 161 CrPC but statements u/s 164 Cr.P.C., which are made in front of the magistrate;

(ii) there are lengthy passages in a number of the statements which are word to word identical, and

(iii) in many cases, the witnesses were giving evidence after the event, reporting on matters by reference to documents before them (or available to them) which are not produced, or annexed to the statement.

2.2. However, the SDJ held that the statement under Section 161 Cr.P.C. were admissible in evidence, as the witness accepts the written statement, which is clear from the use of the words “RO&AC” (Read Over and admitted to be correct) written by the Investigating Officer at the bottom of the statements. The SDJ had also relied upon Section 84(2), (3) and (4), which provides that statements made to an investigating officer would be admissible at trial. The relevant portion of the judgment of SDJ is as under:

51. I have had no evidence from the officers as to how the section 161 statements were taken. I bear in mind this is a fraud case. The evidence is repetitive with many witnesses producing similar information. The officers investigating these matters often receive statements from witnesses who produce the same documents from their bank records. There is no evidence that I have heard which undermines the bona fides of the investigating officers.

52. I do not know the processes the officers go through to produce a statement which they read over to the witness. It would be wrong to speculate but it may involve a number of preliminary interviews before the witness statement is finalised. I have no doubt that what happens then is that the information taken from the witness which is put into statement form is then read over to the witness. If the witness accepts the truth and accuracy of the statement, the officer signs the statement and writes “RO and AC”, read over and affirmed as correct.

2.3. The matter was then Appealed before the UK High Court, wherein the following was observed:

37. S.161 of the Indian Criminal Procedure Code (‘the Code’) establishes the approach in India to witness statements in criminal cases. Witnesses are bound to appear at trial, to be sworn, and then to give oral evidence and be cross-examined. S.161 statements are prepared by police (or prosecutors) as an indication of the evidence a witness will give, but they are not admissible as evidence at trial in India. They may be used as the basis of cross-examination if the evidence given proves inconsistent with the statement. The process of creation is standardised. Once the statement is prepared by the relevant officer, it is read to, and approved by, the witness. The approval is attested by the officer, typically using the acronym “RO&AC”, standing for “Read Over and Affirmed to be Correct”. The statements are accepted to be hearsay evidence, as the SDJ remarked in paragraph 49 of her judgment.

3. Admissibility of statements recorded under Section 161 of the Cr.P.C. as held by UK Courts, i.e., both Westminster Magistrates’ Court & UK High Court:

3.1.  It is the considered opinion of the author that the UK law viz. admissibility of statement given to an Investigating Officer is not applicable either to India or to an Indian subject and thus, the document (statements under Section 161 Cr.P.C.) considered by the UK Court was not a statement recorded under Section 84(2), and (4) of the Extradition Act 2003 but under Section 161 Cr.P.C., which statements are per-se inadmissible.

3.2. A statement, which is per-se inadmissible, cannot change its colour to an admissible document, merely by change of sight or by location of its use.

3.3. The observation of the UK Courts that the statement under Section 161 Cr.P.C. is admissible is directly contrary to the settled principles of law laid down by the Hon’ble Supreme Court of India and various High Courts of India, apart from being statutorily inadmissible, as is clear from the following submissions.

3.4. Section 161 of Cr.P.C. deals with the examination, by the Police during the investigation of the matter, of witnesses, who are supposed to be acquainted with the facts and circumstances of the case. The said Section reads as under:

161. Examination of witnesses by police.

(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.

3.5. However, the said statements recorded by the Police under Section 161 Cr.P.C. are per se inadmissible in nature and, thus, have no evidentiary value. The same is also clear from Section 162 Cr.P.C., which provides that the statement of a witness under Section 161 Cr.P.C. can be used only for the purposes to contradict such witness in the manner provided by Section 145 of the Indian Evidence Act, 1872 (1 of 1872 ). Section 162 Cr.P.C. reads as under:

162. Statements to police not to be signed: Use of statements in evidence.

(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 145 of the Indian Evidence Act, 1872 (1 of 1872 ); and when any part of such statement is so used, any part thereof may also be used in the re-examination of such witness, but for the purpose only of explaining any matter referred to in his cross- examination.

3.6. Meaning thereby that the statement under Section 161 Cr.P.C. can be used by a party, if the witness, while deposing on oath before the Court, gives an inconsistent version from the one given in the statement under Section 161 Cr.P.C.

3.7. It is for this reason that the legislature in its wisdom has limited the scope and applicability of the statements under Section 161 CrPC only for the purpose of confrontation, as clearly provided in Section 162 CrPC.

3.8. The Hon’ble Courts through various judicial pronouncements has time and again held that the statements under Section 161 Cr.P.C. are inadmissible in nature. Few of the said decisions are as under:

(a) The Hon’ble Supreme Court of India in Rajendra Singh Vs. State of U.P and Ors. reported as 2007 (3) ACR 2696 (SC) wherein the Hon’ble Supreme Court criticized the reliance placed by the High Court on the statement under Section 161 CrPC as the same is wholly inadmissible. Relevant portion of which is as under:-

“6. The High Court has basically relied upon the statements of six witnesses which had been recorded by the investigating officer under Section 161 Cr.P.C. to record a positive finding that the respondent could not have been present at the scene of commission of the crime as he was present in a meeting of Nagar Nigam at Allahabad. A statement under Section 161 Cr.P.C. is not a substantive piece of evidence. In view of the proviso to sub-section (1) of section 162 Cr.P.C., the statement can be used only for the limited purpose of contradicting the maker thereof in the manner laid down in the said proviso. Therefore, the High Court committed a manifest error of law in relying upon wholly inadmissible evidence in recording a finding that Kapil Dev Singh could not have been present at the scene of commission of the crime.

10. Having considered the submissions made by learned Counsel for the parties, we are of the opinion that the statements of the witnesses under Section 161 Cr.P.C. being wholly inadmissible in evidence could not at all be taken into consideration. The High Court relied upon wholly inadmissible evidence to set aside the order passed by the learned Sessions Judge.

That apart, no finding on a plea of alibi can be recorded by the High Court for the first time in a petition under Section 482 Cr.P.C. As mentioned above, the burden to prove the plea of alibi lay upon the accused which he could do by leading evidence in the trial and not by filing some affidavits or statements purported to have been recorded under Section 161 Cr.P.C.”

(Emphasis Supplied)

(b) The Hon’ble Supreme Court of India in Ram Swaroop and Ors. vs. State of Rajasthan reported as (2004) 13 SCC 134 held that statement under Section 161 CrPC cannot be used as a evidence, relevant portion of which is as under:-

“23. The whole procedure adopted by the High Court is clearly illegal and cannot be sustained. We have also noticed that the High Court has attached undue importance to the statements made in the course of investigation and recorded under Section 161 of the Code of Criminal Procedure. It is well settled that a statement recorded under Section 161 of the Code of Criminal Procedure cannot be treated as evidence in the criminal trial but may be used for the limited purpose of impeaching the credibility of a witness.

(Emphasis Supplied)

(c) The Hon’ble Supreme Court of India in Baldev Singh Vs State of Punjab reported as (1990) 4 SCC 692 held that statement recorded under Section 161 of the CrPC shall not be used for any purpose except to contradict a witness in the manner prescribed in the proviso to Section 162(1), relevant portion of which is as under:-

“6. It is seen from the judgment of the High Court that though PW-10 in his chief examination has supported the prosecution version in all its material particulars has given a complete go – by and struck a death kneel to the prosecution in his cross-examination stating that due to darkness he could not identify the culprits. The High Court was inclined to place reliance on his evidence on the ground that this witness in his statement before the police; recorded under Section 161 of the CrPC during the investigation as well in the first information report Exh. P.O., has narrated all the relevant facts and had not whispered in those statements that he could not identify the appellant due to darkness. This reasoning of the High Court in our view is erroneous.

Needless to stress that the statement recorded under Section 161 of the CrPC shall not be used for any purpose except to contradict a witness in the manner prescribed in the proviso to Section 162(1) and that the first information report is not a substantial piece of evidence.

The High Court has misled itself into relying upon these two statements and thereby has fallen into a serious error. It is pertinent to note in this connection that PW -7, an Advocate who is a disinterested witness has testified to the fact that both PWs 9 and 10 met him after the incident, but they did not tell the name of the appellant.”

(Emphasis Supplied)

3.9. Moreover, the statements under Section 161 CrPC are made and written by the concerned investigating officer himself and the concerned witness to whom the said statement is attributed may not even have given the said statement.

3.10. It is pertinent to mention that a statement under Section 161 Cr.P.C. is also not to be signed by the witness concerned, as is clear from Section 162 Cr.P.C. and thus, the statement is a version recorded by the investigating officer. However, to show that the witness has approved the contents of the statement under Section 161 Cr.P.C. as correct, the statement generally contains an acronym “RO&AC”, standing for “Read Over and Admitted to be Correct”.

3.11. The author, with his experience of being a criminal trial lawyer, who has himself cross-examined hundreds of witnesses, states that he has observed that the statements under Section 161 CrPC are recorded by the Officers in terms of their own understanding and their own pre-conceived purposes and that the meaning of the acronym “RO&AC” is not even known to the witnesses.

3.12. In many cases, during the cross-examination by the author, thewitnesses have admitted that they are not even aware about the purported statement which the agency attributed to them, or that the same was not read over to them for their confirmation.

3.13. They have even admitted that they are not even aware of the meaning of the acronym ‘RO & AC’, which is usually written at the end of each statement. Few examples of the same are mentioned below, only for sample (but the name of the witnesses and the context of the evidence not pertaining to the present Article are removed for confidentiality issues):

(I) In 2G Spectrum Case:

(a) Response of Witness A while under cross-examination by the Author:

After my statement was recorded I neither read my statement word by word nor said OK to the IO. I do not know the meaning of “RO & AC”.

(b) Response of Witness B while under cross-examination by the Author:

Q. Do you understand the meaning of RO & AC?

Ans: I do not understand its meaning.

(c) Response of Witness C while under cross-examination by the Author:

I do not understand the meaning of “RO & AC”.

(d) Response of Witness D while under cross-examination by the Author:

I do not know the meaning of “RO & AC”.

(e) Response of Witness E, while under cross-examination by the Ld. Spl. PP for CBI:

Ques: Did the IO record your statement?

Ans: Yes.

At this stage, witness has been shown his statement recorded under Section 161 CrPC and his attention is drawn to portion A to A of statement mark PW xxxxxxx.

Ques: Did you state the facts recorded at portion A to A in the aforesaid statement?

Ans: No.

Ques: I put it to you that you did state the facts before the IO as recorded in portion A to A to the effect that “xxxxxxx xxxxxxx xxxxxxx”?

Ans: That is incorrect.

(f) Response of Witness F, while under cross-examination by the Ld. PP for CBI:

“CBI officials spoke to me but did not record my statement. I have been shown statement recorded in my name under Section 161 Cr.P.C and only a part of it pertains to the matter about which CBI officials spoke to me.”

(g) Response of Witness G, while under cross-examination by the Ld. PP for CBI:

“I had a discussion with the CBI, though, there was no interrogation. No statement of mine was recorded in front of me. I have been shown astatement recorded under Section 161 Cr.P.C and attributed to me and I have seen it for the first time. The same is now Mark PW xxxxxxx.”

(h) Response of Witness H, while under cross-examination by the Ld. PP for CBI:

“ It is wrong to suggest that my statement was recorded. I have gone through statement dated xxxxxxx recorded under Section 161 Cr.P.C and attributed to me. However, this is not mystatement, though, the information recordedtherein is partly true. The statement is now Mark xxxxxxx.”

(i) Response of Witness I, while under cross-examination by the Ld. PP for CBI:

“A discussion took place with me by the CBI. No statement of mine was recorded. I have been shown a statement recorded under Section 161 Cr.P.C and attributed to me and this statementis seen by me for the first time in Court today.The statement is now Mark xxxxxxx. It is wrong to suggest that this statement was given by me to the IO.”

(j) Response of Witness J, while under cross-examination by the Ld. PP for CBI:

“I was questioned by the CBI, but I do not know if my statement was recorded by it or not. I have been shown a statement recorded under Section 161 CrPC and attributed to me. However, this is not the statement given by me to the CBI. The statement is now mark PW xxxxxxx. It is wrong to suggest that this statement was given by me to the CBI.”

(k) Response of Witness K, while under cross-examination by the Ld. PP for CBI:

I have gone through a statement recorded under Section 161 CrPC and attributed to me and it is not my statement. …… It is wrong to suggest that the statement contained in mark xxxxxxx is the statement given by me to the IO.…..

(l) Response of Witness L, while under cross-examination by the Ld. PP for CBI:

“CBI had recorded my statement. I was interrogated by the IO. No statement was readover to me by the IO. I have been shown astatement dated xxxxxxx recorded under Section 161 Cr.P.C and attributed to me. However, thisstatement was not made by me before the IO.The statement is now Mark xxxxxxx. It is wrong to suggest that I made this statement before the IO.”

II. In Coal Scam Cases:

(m) Response of Witness M while under cross-examination by the Author:

“I had stated in my statement U/S 161 Cr. PC to the IO that xxxxxxx xxxxxxx. Confronted with statement U/S 161 Cr. PC dated xxxxxxx Ex. PW xxxxxxx, the aforesaid fact is not mentioned.

(n) Response of Witness N while under cross-examination by the Author:

“I did state in my statement U/s 161 Cr.PC dated xxxxxxx that xxxxxxx xxxxxxx xxxxxxx. Confronted with statement u/s 161 Cr.PC dated xxxxxxx where it is not so mentioned. The statement is Ex. PW xxxxxxx.

(o) Response of Witness O while under cross-examination by the Author:

“I had stated in my statement u/s 161 Cr.PC about xxxxxxx. At this stage witness has been confronted with his statement u/s 161 Cr.PC dated xxxxxxx where there is no mention of xxxxxxxxx. The statement u/s 161 Cr. PC as above is Ex. PW xxxxxxx.”

(p) Response of Witness P while under cross-examination by the associate of the Author:

“I had stated to the IO in my statements U/S 161 Cr. PC that xxxxxxx xxxxxxx xxxxxxx. Witness has been confronted with his two statements U/S 161 Cr. PC Dated 06.07.2015 and 24.08.2015, where it is not mentioned that xxxxxxx xxxxxxx.

I had however stated to the IO in my statements U/S 161 Cr. PC that xxxxxxx xxxxxxx xxxxxxx. Witness has been confronted with his two statements u/s 161 Cr. PC dt. xxxxxxx and xxxxxxx, where no such fact are mentioned.”

(q) Response of Witness Q while under cross-examination by the Author:

“I must have told to the IO that xxxxxxx xxxxxxx. Witness has been confronted with his statement under Section 161 Cr. P.C. dated xxxxxxxx where nothing is mentioned in this regard. The statement is Ex. PW xxxxxxx.

3.14. Taken together, it has been noticed that:

(a) Statements under Section 161 Cr.P.C. are often not read back to the witnesses;

(b) Statements under Section 161 Cr.P.C. are often denied by their supposed makers as inaccurate;

(c) Statements under Section 161 Cr.P.C. often do not reflect what the witness has stated.

3.15. That is why statements under Section 161 Cr.P.C. are neveradmissible as evidence of their contents, but are only admissible as a previous inconsistent statement, and for that limited purpose only. That is to say, statements under Section 161 Cr.P.C. are simply incapable of providing admissible evidence of a prima facie case.

4. Conclusion:

4.1. In view of the same, it is concluded that the view taken by the UK Courts is not in consonance with the law applicable to statements recorded under Section 161 Cr.P.C. and the Courts need to relook at the view taken by it, as the same is far from reality of situation in India, as per the prevalent law.

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Advocate Vijay Aggarwal represented various accused in the 2G scam case and has been representing diamantaires Nirav Modi and Mehul Choksi  in various cases.

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