Blurb:
The question is, can a statement made under Sec 164 be used as evidence? The answer is a definite no. The sum total of orders passed by various courts is that a statement can only be used to ensure that the witness does not recant his or her statement in court.
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If there is one thing that the crime branch has succeeded in doing, it is creating a perception that Section 164 of the Criminal Procedure Code is as good as hard evidence. The Louis Berger case is particularly difficult because the starting point is a submission made by company officials in a court in New Jersey, USA. The document is not in the possession of the crime branch and it does not look like the company official is willing to travel to Goa to implicate himself in a crime. Consequently, a complaint was lodged on the basis of newspaper reports and some material downloaded from the internet. The complainant was an Under Secretary in the government.
The ingenuity of the crime branch is that it was able to build a case on the basis of statements made by the dramatis personae and to give these statements some weight and respect it got them recorded under Section 164 of the CrPC. Under this section, the statements are recorded before a magistrate who will do so only if they are made freely and without coersion. In reality, there is always an element of coersion in the background or else why would people knowingly implicate themselves?
The question is, can a statement made under Sec 164 be used as evidence? The answer is a definite no. And this matter was decided by the Supreme Court in the Ram Kishan versus Harmit Kaur case wherein the court ruled that a statement under Section 164 of the CrPC is not substantive evidence. It can only be used to corroborate the statement of a witness or contradict a witness. In the Baji Nath Sah versus State of Bihar matter, the apex court reiterated this principle and added that it can be utilized only as a previous statement and nothing more. In the State of Goa versus Rohit Monserrate, the Children's Court refused to accept the statement of the girl that she was allegedly raped as evidence even though it was made under Sec 164 because of the lack of corroboratory evidence. The sum total of orders passed by various courts is that a statement can only be used to ensure that the witness does not recant his or her statement in court.
Bhalchandra Naik probably played on this perception when he wrote to the Deputy Inspector General of Police that he would like his statement accusing Pratapsingh Rane and Vishwajit Rane of accepting a bribe under Section 164. How can the complainant also become a witness? By writing the letter Naik has exposed himself to the charge of manipulating the system to take forward a case that at best, is based on his word against that of Pratapsingh Rane, who has served as chief minister of the state on seven occasions and enjoys a level a credibility that few politicians can boast of. Naik will have to do more than just make charges. The letter also raises several questions. Did Naik act at the behest of someone else in the Congress or the BJP? Is Naik part of a plan to discredit Congress leaders? It is easy to level charges, gathering evidence is a lot more tedious. One mustn't forget that all cases of bribery booked by the vigilance department are based on recovery of the bribe money, not mere statements.
