Section 161 CrPC and Section 180 BNSS: Examination of Witnesses by Police
Police examination of witnesses is an important stage of a criminal investigation. Section 161 of the Code of Criminal Procedure, 1973 (CrPC) governed this process under the earlier law. Its corresponding provision under the Bharatiya Nagarik Suraksha Sanhita, 2023 (BNSS), is Section 180.
What is examination of witnesses by police?
Examination of witnesses means questioning a person believed to know facts or circumstances relevant to an offence being investigated. It is distinct from testimony given on oath in court. A police officer may ask questions to discover evidence, identify persons involved, and verify the sequence of events.
The power to examine a person does not itself make that person an accused. The legal protection against answers tending to expose the person to a criminal charge, penalty or forfeiture applies to the questioning described in these provisions.
Section 180 BNSS: Examination of witnesses by police
Section 180(1): Who may examine a witness?
A police officer conducting an investigation under the relevant chapter may orally examine any person supposed to be acquainted with the facts and circumstances of the case. Another police officer of at least the rank prescribed by the State Government may also do so when acting on the investigating officer's requisition.
Section 180(2): Duty to answer and exception
The person examined must answer truthfully questions relating to the case, except questions whose answers would have a tendency to expose that person to a criminal charge, penalty or forfeiture. This statutory exception is particularly important when questioning might be self-incriminating.
Section 180(3): Recording statements
The police officer may record a statement in writing and, when doing so, must make a separate and true record of each person's statement. Statements may also be recorded by audio-video electronic means, as provided by the section.
Special rule for certain women complainants
Section 180(3) contains a further safeguard for recording the statement of a woman against whom specified sexual or related offences under the Bharatiya Nyaya Sanhita, 2023 (BNS), are alleged to have been committed or attempted: her statement must be recorded by a woman police officer or any woman officer. The exact listed offences should be checked against the current statutory text.
Section 161 CrPC: Earlier statutory provision
Section 161 CrPC was titled "Examination of witnesses by police". Its three subsections established the same broad framework:
- Subsection (1): An investigating police officer, or another appropriately ranked officer acting on requisition, could orally examine persons acquainted with the case.
- Subsection (2): The person questioned had to answer truly, except where an answer tended to expose that person to a criminal charge, penalty or forfeiture.
- Subsection (3): A police officer could write down statements, making a separate and true record for each person. The provision permitted audio-video recording and required statements of women affected by specified IPC offences to be recorded by a woman police officer or woman officer.
The audio-video recording proviso was inserted by Act 5 of 2009, section 12, effective 31 December 2009. The safeguard concerning women complainants was inserted by Act 13 of 2013, section 15, effective 3 February 2013.
| Subject | Earlier law | Current corresponding law |
|---|---|---|
| Police examination of witnesses | Section 161 CrPC | Section 180 BNSS |
| Police statements and their use in evidence | Section 162 CrPC | Section 181 BNSS |
| No inducement to be offered | Section 163 CrPC | Section 182 BNSS |
| Recording confessions and statements by Magistrate | Section 164 CrPC | Section 183 BNSS |
Rights and safeguards during police questioning
Protection against self-incrimination
The statutory exception in Section 180(2) BNSS and Section 161(2) CrPC must be read alongside Article 20(3) of the Constitution of India, which provides that no person accused of an offence shall be compelled to be a witness against themselves.
Police statements are not ordinarily signed
Section 181 BNSS, corresponding to Section 162 CrPC, regulates statements made to police during investigation, including the general prohibition on obtaining the maker's signature and the limited ways such statements may be used at trial, subject to statutory exceptions.
Attendance at a police station is a separate question
Section 179 BNSS, corresponding to Section 160 CrPC, governs written requirements to attend before the investigating officer and contains protections regarding the place of attendance for specified categories of persons. The power to examine a witness under Section 180 should not be confused with the power to require attendance under Section 179.
Statement to police versus statement before a Magistrate
A police examination under Section 180 BNSS is not the same as recording a confession or statement by a Magistrate under Section 183 BNSS. The applicable procedural safeguards and evidentiary consequences differ.
State amendments under Section 161 CrPC
Chhattisgarh
The earlier page records the Chhattisgarh amendment under Chhattisgarh Act 25 of 2015, section 8. It modified the second proviso to Section 161(3) CrPC, addressing statements of women affected by specified IPC offences, audio-video recording as far as possible, and protection of the woman's identity. Its continuing applicability must be assessed in light of BNSS repeal and savings, and any applicable current State legislation.
Arunachal Pradesh
The earlier page records Arunachal Pradesh Act 3 of 2019, section 14, which modified the IPC offence references in the second proviso to Section 161(3) CrPC, including references to Sections 376AA and 376DA IPC. This was an amendment to the earlier CrPC framework and should not automatically be treated as an amendment to Section 180 BNSS.
Related provisions and official legal sources
For authoritative statutory wording, amendments and commencement notifications, consult the official legislation repositories rather than relying solely on summaries:
- India Code - official central and state legislation repository (search for the Bharatiya Nagarik Suraksha Sanhita, 2023, Act 46 of 2023, Section 180).
- e-Gazette of India - official Gazette notifications.
- Legislative Department, Ministry of Law and Justice.
- Code of Criminal Procedure: sections and overview.
- Section 162 CrPC: Statements to police and their use in evidence.
- Section 163 CrPC: No inducement to be offered.
- Section 164 CrPC: Recording confessions and statements.
Frequently asked questions
What replaced Section 161 CrPC?
Section 180 of the BNSS is the corresponding provision for police examination of witnesses under the new procedural law.
Can a witness refuse to answer police questions?
A witness generally must answer relevant questions truthfully, but need not answer questions that tend to expose the witness to a criminal charge, penalty or forfeiture.
Can police record witness statements electronically?
Yes. The statutory framework permits audio-video electronic recording of statements, subject to the applicable legal requirements.
Legal note: This article provides general information, not advice for a particular case. Check the current central and applicable State laws, including any notifications and transitional rules, before relying on a provision in proceedings.