Anyone reading a criminal case file for the first time usually trips over the same thing: two different kinds of witness statements, recorded at two different stages, by two different people. Section 161 and Section 164 CrPC often get confused because both involve statements made during a criminal investigation. They aren’t the same, though, and the difference actually affects how much weight a statement carries in court.
Section 161 CrPC (Now Section 180 BNSS): Statements to Police
Section 161 lets a police officer investigating a case orally examine anyone believed to know the facts of the matter. This includes witnesses and, in practice, courts have read it to cover suspects too, not just neutral bystanders. Under the BNSS, this provision now sits at Section 180, with the wording largely unchanged.
The person being questioned has to answer truthfully, except where the answer could expose them to a criminal charge or penalty, the same protection against self-incrimination that runs through the rest of criminal procedure. What’s recorded here isn’t treated as substantive evidence. Under Section 162 CrPC, now Section 181 BNSS, a statement given to the police can’t even be signed by the person who made it, and at trial it can only be used to contradict that witness if they say something different later, not to prove the truth of what they originally said.
Section 164 CrPC (Now Section 183 BNSS): Statements and Confessions Before a Magistrate
Section 164, now Section 183 under the BNSS, works differently because it involves a Magistrate rather than the police. Here, a Magistrate can record either a statement or a confession made by a person connected to the case, and this typically happens when the investigating agency wants that account preserved in a more reliable, less pressured setting than a police station.
Before recording a confession, the Magistrate has to warn the person that they aren’t obligated to confess, and that anything they say can be used against them. The Magistrate also has to be satisfied that the confession is being made voluntarily, without any police officer present in the room at the time. Statements recorded this way carry far more evidentiary weight. A confession under this section can be used as substantive evidence against the person who made it, and in cases involving sexual offences, statements of the victim recorded here can even be treated as examination-in-chief during trial, reducing the need for the victim to repeat everything again in open court.
Key Differences Between the Two
Who records it: Section 161 statements are taken by a police officer. Section 164 statements or confessions are taken by a Magistrate.
Where it happens: Section 161 usually happens wherever the investigation takes the police, often informally. Section 164 happens in a Magistrate’s court, under judicial supervision.
Signature: A Section 161 statement can’t be signed by the person giving it. A Section 164 statement or confession is signed, and the Magistrate certifies it.
Evidentiary value: A Section 161 statement can only be used to contradict a witness later, never as direct proof. A Section 164 confession can be used as substantive evidence, and certain Section 164 statements can stand in as examination-in-chief.
Safeguards: Section 161 has the basic protection against self-incrimination. Section 164 adds a formal warning, a voluntariness check, and the absence of police influence while recording. Both provisions exist alongside a broader set of protections the law gives someone once they’re pulled into a criminal case, covered in more detail in Rights of Accused Person in India: Legal Protections That Matter.
Why This Distinction Matters in a Trial
Confusing the two can actually change the outcome of a case. A statement made only under Section 161 carries limited weight and mainly protects the accused, since it can’t be used to build the prosecution’s case directly. A confession or statement under Section 164, on the other hand, can genuinely make or break a trial, which is exactly why the law surrounds it with more procedural safeguards than the police-recorded version gets.
Lawyers looking at a chargesheet will usually check first whether a key statement was recorded under Section 161 or Section 164, because that single detail tells them how much that statement can actually do in court.
Conclusion
Section 161 and Section 164 CrPC might look similar on paper since both involve someone narrating facts related to a crime. But one is a police tool for investigation, and the other is a judicial safeguard meant to preserve a more reliable account. Now renamed Sections 180 and 183 under the BNSS, the substance of both provisions has carried over largely intact, and understanding this difference between Section 161 and Section 164 remains just as important under the new code as it was under the old one.
Written by: Khushi Mittal
