Gujarat HC Bars Use Of Wife’s Police Statement Against Her In Disproportionate-Assets Trial, Though Recorded As Witness In Husband’s Earlier Case

The petitioner was recorded as a witness during an ACB search of her residence on 14 March 2017, in proceedings concerning a bribery allegation against her husband.

The CBI later registered a separate disproportionate-assets case in which the petitioner was also charged.

During the evidence of the ACB officer in that trial, the prosecution had the petitioner’s earlier police statement exhibited.

The trial court permitted this, reasoning that the statement was not inculpatory.

The petitioner challenged that ruling, seeking removal of the relevant portions of the officer’s deposition.

1. Whether the petitioner’s statement, recorded by police under Section 161 Cr.P.C. in earlier proceedings in which she was a witness, could be exhibited in the subsequent CBI trial in which she was an accused

2. Whether the statement could be admitted on the basis that it was exculpatory or could be used under Section 157 of the Evidence Act

Sections 161 and 162 Cr.P.C. govern statements made to police during investigation.

Section 161(2) requires a person questioned to answer truthfully, except where the answer may expose that person to a criminal charge, penalty or forfeiture; Section 162 generally bars the use of a written police statement at an inquiry or trial concerning the offence under investigation, subject to the statutory use for contradiction and related re-examination.

The court treated Section 162 as controlling over the general corroboration provision in Section 157 of the Evidence Act, and held that a police statement is not substantive evidence and cannot be introduced against an accused merely because it is characterised as exculpatory.

The petitioner’s statement was recorded by police during an investigation in which she was a witness, but it was later tendered through the investigating officer in a separate CBI trial in which she was an accused.

The court held that the statement remained a police statement governed by Sections 161 and 162 Cr.P.C.; its use was not made permissible by the fact that the petitioner had not been an accused when it was recorded, or by the prosecution’s description of it as exculpatory.

Nor could Section 157 Evidence Act be relied on to corroborate it, because Section 162 restricted the use of such statements.

The statement therefore could not be used as evidence through the officer in the later trial.

It allowed the petition and made the Rule absolute.