Indian Kanoon - Search engine for Indian Law

25.The judgment in Mottai Thevan's case was followed later by various Division Benches of this Court. It is relevant to note that Mottai Thevan's case was decided on 6th September, 1951. However, within one month, on 22nd https://www.mhc.tn.gov.in/judis ( Uploaded on: 14/11/2025 05:03:46 pm ) October, 1951, the Division Bench consisting of the same Judges viz., Hon'ble Mr. Justice Mack and Hon'ble Mr. Justice Somasundaram, in Vokkaligara Yengtappa v. State reported in 1952 MWN Cr 286 held that the statement made by the accused during investigation cannot be used for any purpose except provided under Section 162 Cr.P.C. unless and until the law is changed and in fact, the Bench has suggested that Section 162 Cr.P.C. needs to be amended so as to enable the statement of the accused to be used in their favour, particularly if they happen to be in explanation of the recovery of incriminating articles from their possession. The relevant portion of the judgment in Vokkaligara Yengtappa's case is extracted hereunder :

https://www.mhc.tn.gov.in/judis ( Uploaded on: 14/11/2025 05:03:46 pm ) and if he does so, he shall make a separate and true record of the statement of each such person whose statement he records.”

32.Section 162 Cr.P.C. states that no statement made during the course of an investigation shall be used for any purpose in enquiry or trial except for the purpose of contradicting the maker thereof, when such maker is examined as witness of the prosecution side. However, as per Section 162(2) Cr.P.C., the bar contained under Section 162 Cr.P.C. will not apply to the statement falling under the provisions of Clause (1) of Section 32 of the Evidence Act or to affect the provision of Section 27 of the Evidence Act.

33.In Nandhini Satpathy v. Dani (P.L.) and another reported in (1978) 2 SCC 424, the Hon'ble Supreme Court has held that the phrase “any person supposed to be acquainted with the facts and circumstances of the case” contained in Section 161 Cr.P.C. includes even the accused person. Therefore, all the confessions are normally recorded only under Section 161 Cr.P.C./Section 180 BNSS. There is no separate provision or procedure provided under the Code to record the confession of the accused persons. Even to record a judicial confession, only the procedure contemplated under Section 164 Cr.P.C./Section 183 BNSS has to be followed. Therefore, the confession recorded by the Police during the investigation, is recorded only under Section https://www.mhc.tn.gov.in/judis ( Uploaded on: 14/11/2025 05:03:46 pm ) 161(3) Cr.P.C./Section 180(3) BNSS. Therefore, any statement recorded under Section 161 Cr.P.C./Section 180 BNSS, whether in the form of statement or confession, has to be proved in the manner known to law as stipulated under Section 162 Cr.P.C./Section 181 BNSS, provided the same can be used by the accused to contradict the witnesses called for by the prosecution. However, for any statement recorded under Section 161 Cr.P.C./Section 180 BNSS falling within the ambit of dying declaration or Section 27 of Evidence Act, there is a clear exception provided under Section 162(2) Cr.P.C./Section 181(2) BNSS. Except under these three scenarios as stated under Section 162 Cr.P.C./Section 181 BNSS, no statement recorded by the Investigating Officer, including the confession, can be used for any purpose.

40.Though in the judicial discipline, when coordinate Benches take two different views, normally the matter will be referred to the Full Bench, since the judgment of the Hon'ble Supreme Court in Dipakbhai Jagdishchandra Patel's case has not been brought to the notice of the Hon'ble Division Bench while deciding Selvam's case and when the Apex Court's judgment is already to the https://www.mhc.tn.gov.in/judis ( Uploaded on: 14/11/2025 05:03:46 pm ) point and has held that any statement recorded during the investigation under Section 161 Cr.P.C/Section 180 BNSS is governed by Section 162 Cr.P.C./Section 181 BNSS and inadmissible and even the confession recorded by the Police officer during investigation is always subject to the bar contained under Section 162 Cr.P.C, this issue need not be referred to a larger Bench in view of the authoritative pronouncement already made by the Apex Court.