Section 161 CrPC Statements can be Considered at Cognizance Stage

Source: Supreme Court

Why in News? 

A bench of Justice J.B. Pardiwala and Justice K. Vinod Chandran of the Supreme Court decided Mrityunjay Kumar Chaudhary v. State of Bihar & Anr. (2026). The Court held that statements recorded under Section 161 of the Code of Criminal Procedure, 1973 (CrPC), now Section 180 of the Bharatiya Nagarik Suraksha Sanhita, 2023 (BNSS), may be considered at the stage of cognizance, though they cannot be relied on at trial. The Court set aside the Patna High Court's order quashing the Magistrate's cognizance order and restored it. 

What was the Background of Mrityunjay Kumar Chaudhary v. State of Bihar & Anr. (2026) Case? 

• The appellant was the father of the deceased, who had died by drowning. 
• He alleged that Respondent No. 2 had played an active role in the death. 
• There was strong circumstantial evidence, and witnesses had seen the accused running away from the spot. 
• An FIR was lodged, but after investigation the police filed a final report stating that no case was made out (closure report). 
• The appellant filed a protest petition against the closure report, which was renumbered as a complaint case. 
• The Magistrate refused to take cognizance. The appellant challenged this in revision before the Sessions Court. 
• The Additional Sessions Judge examined the Section 161 statements, took a prima facie view that there was material for trial, and directed the Magistrate to consider the final report afresh. 
• On remand, the Magistrate took cognizance of offences under Sections 302 and 201 of the Indian Penal Code, 1860 (IPC). 
• The Patna High Court quashed the cognizance order, relying on the statements recorded under Section 161 CrPC. 
• Aggrieved, the appellant approached the Supreme Court. 

What were the Court's Observations? 

On the use of Section 161 CrPC statements: 

• Statements recorded under Section 161 CrPC cannot be relied on at the trial. 
• However, they can be considered at the time of cognizance, since they are part of the material produced by the police before the court along with the final report. 

On cognizance despite a closure report: 

• It is settled law that a court is entitled to take cognizance even when the police have filed a closure report. 
• The High Court ignored this settled position. 

On the High Court's approach: 

• The revisional order of the Additional Sessions Judge was detailed. It specifically dealt with the Section 161 statements and took a prima facie view that there was material to proceed to trial. 
• The Additional Sessions Judge had also noted the decisions on taking cognizance despite a closure report. 
• The High Court casually brushed aside these findings, despite the very compelling circumstances on record. 

On the effect of the findings on trial: 

• The Court found no reason to interfere with the cognizance taken on the facts and circumstances of the case. 
• It clarified that the views of the Additional Sessions Judge, the Magistrate and the Supreme Court while taking or affirming cognizance shall not in any manner govern or regulate the trial. 

Conclusion: 

• The Court allowed the appeal, set aside the High Court's order and restored the Magistrate's cognizance order. Respondent No. 2 was directed to appear before the Magistrate, who shall carry out the committal proceedings in accordance with law.

What is Section 180 of the BNSS? 

About: 

• Section 180 of the Bharatiya Nagarik Suraksha Sanhita, 2023 deals with the examination of witnesses by the police during investigation. 
• It corresponds to Section 161 of the CrPC. 

Provisions: 

• Section 180(1): A police officer making an investigation may orally examine any person supposed to be acquainted with the facts and circumstances of the case. 
• Section 180(2): Such person is bound to answer truly all questions relating to the case, except questions whose answers would tend to expose him to a criminal charge, penalty or forfeiture. 
• Section 180(3): The police officer may reduce the statement into writing, and may also record it by audio-video electronic means. The statement of a woman against whom certain sexual offences are alleged to have been committed shall be recorded by a woman police officer or any woman officer. 

Restriction on Use of Statements (Section 181 BNSS): 

• Section 181 of the BNSS (corresponding to Section 162 CrPC) provides that a statement made to a police officer during investigation shall not be signed by the person making it. 
• Such a statement cannot be used for any purpose at any inquiry or trial, except to contradict the witness in the manner provided under Section 148 of the Bharatiya Sakshya Adhiniyam, 2023 (corresponding to Section 145 of the Indian Evidence Act, 1872). 
• This is why Section 161 CrPC statements are not substantive evidence at trial, though the court may look at them, as part of the police report, while deciding whether to take cognizance. 

Options Before the Magistrate on Receiving a Closure Report: 

• On receiving a final report under Section 193 BNSS (Section 173 CrPC) stating that no offence is made out, the Magistrate may:  
• Accept the report and drop the proceedings; or 
• Disagree with the report, take cognizance of the offence and issue process; or 
• Direct further investigation. 
• Before accepting a closure report, the Magistrate must give notice to the informant and hear him, as held in Bhagwant Singh v. Commissioner of Police (1985). 
• The informant may also file a protest petition, which the Magistrate may treat as a complaint and proceed accordingly.